Surrender and Payment. (a) Prior to the Election Record Date, Parent shall appoint an agent (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby. (b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. (c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable. (d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10. (e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto. (f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities. (g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand. (h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Sources: Merger Agreement (Siebel Systems Inc), Merger Agreement (Oracle Corp /De/), Merger Agreement (Siebel Systems Inc)
Surrender and Payment. (a) Prior At or prior to the Election Record DateClosing, Parent shall appoint an agent a United States bank or trust company or other independent financial institution in the United States (the “Exchange “ Paying Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent for the purpose of (i) mailing Merger and receiving Election Forms and determining, in accordance with this Article 3, to deliver the form of Siebel Merger Consideration to be received by each holder former stockholders of shares of Siebel Stock, the Company. The Company and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to enter into a Paying Agent agreement with the Exchange Paying Agent, as neededwhich agreement shall set forth the duties, the applicable Siebel Merger Consideration to be issued or paid in respect responsibilities and obligations of the Certificates and Paying Agent consistent with the Uncertificated Sharesterms of this Agreement. Promptly after At or prior to the Effective Time, Parent shall senddeposit (or cause to be deposited) with the Paying Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the Merger Consideration payable pursuant to this Article III (such cash shall be referred to in this Agreement as the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Exchange Paying Agent to send, mail to each record holder of Siebel Stock at stockholder whose shares were converted into the Effective Time right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal and instructions (which transmittal, in customary form, that shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be effecteddeemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Book Entry Shares to the Exchange AgentPaying Agent and (ii) instructions for use in such exchange; providedeffecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, that any such the form and substance of which letter of transmittal and instructions shall be sent as reasonably agreed to holders of Uncertificated Shares only by the Company and Parent and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) Closing. Upon receipt of an “agent’s message” by the Exchange Paying Agent (in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe required pursuant to such instructions, the Siebel holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration in respect pursuant to the provisions of this Article III, and the Siebel Stock represented by a Book Entry Share so transferred or Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or transferredCertificates in connection with, as or accrued on, the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) . If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to of such payment exchange that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment exchange shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result by reason of such payment of the Merger Consideration to a Person other than the registered holder of such stockholder owning the Book Entry Share transferred or Certificate surrendered, or Uncertificated Share or shall establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are not payableinsufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) After At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of the shares of Siebel StockCompany Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Book Entry Shares are presented to the Siebel Surviving CorporationCorporation or the Paying Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration pursuant to this Article III, in accordance with the procedures set forth in this Section 3.10except as otherwise provided by Law.
(e) Any portion of the Siebel Merger Consideration made available by Parent to Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by the holders of shares of Siebel Stock six months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent upon demand, and any such holder or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior Article III with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the Siebel their claim for Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying Agent nor any party hereto shall not be liable to any holder Person in respect of shares of Siebel Stock for any amounts paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (If any Certificate or such earlier dateBook Entry Share shall not have been surrendered or transferred, immediately respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity) shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable lawLaw, become the property of ParentParent or the Surviving Corporation, free and clear any stockholder of any claims such Certificate or interest Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of any Person previously entitled theretotheir claim for Merger Consideration in respect thereof.
(fg) No dividends If any Certificate shall have been lost, stolen or other distributions with respect destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent Stock constituting part of and the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to Paying Agent) by the Person in whose name the securities of Parent have been registeredclaiming such certificate to be lost, (i) at the time of such surrender stolen or transferdestroyed, the amount of any cash payable Paying Agent shall issue in lieu of fractional shares exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesthis Article III.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc), Merger Agreement (Skyworks Solutions, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as the exchange agent (the “Exchange Agent”) for the purpose of (i) mailing exchanging Certificates and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates Book-Entry Shares representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Company Common Stock. Parent shall will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid delivered in respect of the Certificates and the Uncertificated Sharesshares of Company Common Stock. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in such exchange; provided, that effecting delivery of shares of Company Common Stock to the Exchange Agent. Exchange of any such letter of transmittal and instructions Book-Entry Shares shall be sent effected in accordance with Parent’s customary procedures with respect to holders of Uncertificated Shares only to the extent determined necessary securities represented by Oracle and the Exchange Agent to effect the transactions contemplated herebybook entry.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Book-Entry Share, together with a properly completed letter of transmittal, will be entitled to receive (A) one or more shares of Parent Common Stock (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) which shall be in the case of a non-certificated book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, form unless a physical certificate is requested by a holder requested) representing, in the aggregate, the whole number of shares of Siebel Stock Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 1.4 and (B) a check in the amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 1.4 and this Article II, including cash payable in lieu of fractional shares pursuant to Section 2.2 and dividends and other distributions pursuant to Section 2.1(f). No interest shall be paid or is otherwise required under applicable lawaccrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends and distributions payable to holders of Certificates or Book-Entry Shares. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Book-Entry Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment the registration thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After . Delivery of the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel aggregate Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demandas applicable, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Book-Entry Shares shall only be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, made to the Person in whose name the securities such Book-Entry Shares are registered. For purposes of Parent have been registeredthis Agreement, (i) at the time of such surrender “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or transferany other entity or organization, the amount of including a government or political subdivision or any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends agency or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesinstrumentality thereof.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Sources: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Anadarko Petroleum Corp), Merger Agreement (Chevron Corp)
Surrender and Payment. (a) Prior to the Election Record Datedate of mailing of the Joint Proxy Statement/Prospectus, Parent DSW shall appoint an agent (the “Exchange Agent”) reasonably acceptable to RVI for the purpose of exchanging certificates or book entries, as applicable, which immediately prior to the Effective Time evidenced shares of RVI Common Stock and the associated Common Stock Purchase Rights (i) mailing the “Certificates”), for the applicable Merger Consideration pursuant to an exchange agent agreement in form and receiving Election Forms and determiningsubstance reasonably satisfactory to RVI. On or before the Effective Time, DSW shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article 3II, and DSW shall make available from time to time after the form Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of Siebel Merger Consideration fractional shares pursuant to be received by each holder Section 2.4 and any dividends or distributions to which holders of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel RVI Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”may be entitled pursuant to Section 2.3(c). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent The Surviving Entity shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel record of shares of RVI Common Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal and instructions for use in such exchange (which shall be in form and substance reasonably satisfactory to DSW and RVI and shall specify that the delivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and (ii) instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebysurrender of the Certificates in exchange for the applicable Merger Consideration and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c).
(b) Each holder of shares of Siebel RVI Common Stock that have been converted into the right to receive the Siebel applicable Merger Consideration shall be entitled and any dividends or other distributions payable in respect thereof pursuant to receiveSection 2.3(c), upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such shares and such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in require, shall be entitled to receive the case of a book-entry transfer of Uncertificated Shares, the Siebel applicable Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Sharesuch shares of RVI Common Stock. The shares of Parent Stock constituting part holder of such Siebel Merger Consideration (if any)Certificate, at Parent’s optionupon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c). Certificates surrendered shall forthwith be in uncertificated book-entry form, unless a physical certificate is requested by a holder cancelled as of shares of Siebel Stock or is otherwise required under applicable lawthe Effective Time. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share Certificate, following the Effective Time, shall represent after the Effective Time for all purposes only the right to receive such Siebel the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.4 and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.3.
(c) If any portion of the Siebel Merger Consideration is to be paid to Whenever a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer dividend or other taxes required as distribution is declared or made after the date hereof with respect to DSW Common Stock with a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, record date after the Effective Time, Certificates such declaration shall include a dividend or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, other distribution in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of all shares of Siebel DSW Common Stock for any amounts paid to a public official issuable pursuant to applicable abandoned property, escheat or similar lawsthis Agreement. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made after the Effective Time with respect to Parent DSW Common Stock constituting part of with a record date after the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Effective Time shall be paid to the holder of any Certificates not surrendered or unsurrendered Certificate with respect to the DSW Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.3. Subject to applicable Law, following surrender of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transferCertificate, there shall be paidpaid to the record holder of the certificates representing whole shares of DSW Common Stock issued in exchange therefor, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment datesurrender, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable theretofore paid with respect to such securitieswhole shares of DSW Common Stock.
(gd) Any portion In the event that a transfer of ownership of shares of RVI Common Stock is not registered in the Siebel stock transfer books or ledger of RVI, or if any certificate or book entry for the applicable Merger Consideration made available is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition to the issuance thereof that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall have paid to the Exchange Agent pursuant to Section 3.10(a) any transfer or Section 3.11 to pay for shares other taxes required as a result of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates the issuance of a certificate or book entry representing shares of Oracle DSW Common Stock immediately prior in any name other than that of the registered holder of such shares of RVI Common Stock, or establish to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares satisfaction of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares that such tax has been paid or is not payable. For purposes of Oracle Stock (excluding this Agreement, “person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLother entity or organization, including a Governmental Entity.
Appears in 3 contracts
Sources: Merger Agreement (Retail Ventures Inc), Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as the exchange agent (the “Exchange Agent”) for the purpose of (i) mailing exchanging Certificates and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates Book-Entry Shares representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Company Common Stock. Parent shall will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid delivered in respect of the Certificates and the Uncertificated Sharesshares of Company Common Stock. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in such exchange; provided, that effecting delivery of shares of Company Common Stock to the Exchange Agent. Exchange of any such letter of transmittal and instructions Book-Entry Shares shall be sent effected in accordance with Parent’s customary procedures with respect to holders of Uncertificated Shares only to the extent determined necessary securities represented by Oracle and the Exchange Agent to effect the transactions contemplated herebybook entry.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Book-Entry Share, together with a properly completed letter of transmittal, will be entitled to receive (i) one or more shares of Parent Common Stock (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) which shall be in the case of a non-certificated book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, form unless a physical certificate is requested or required by a holder applicable law) representing, in the aggregate, the number of shares of Siebel Parent Common Stock that such holder has the right to receive pursuant to Section 1.4 and (ii) a check in the amount equal to any cash payable in lieu of fractional shares which such holder has the right to receive pursuant to Section 2.2 and in respect of any dividends and other distributions which such holder has the right to receive pursuant to Section 2.1(f). No interest shall be paid or is otherwise required under applicable lawaccrued on any Merger Consideration, cash payable in lieu of fractional shares or cash payable in respect of dividends and distributions payable to holders of Certificates or Book-Entry Shares pursuant to Section 2.1(f). Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Book-Entry Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment the registration thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After . Delivery of the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel aggregate Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demandas applicable, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Book-Entry Shares shall only be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, made to the Person in whose name the securities such Book-Entry Shares are registered. For purposes of Parent have been registeredthis Agreement, (i) at the time of such surrender “Person” or transfer“person” means an individual, the amount of a corporation, a limited liability company, a partnership, an association, a trust or any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends other entity or other distributions with organization, including a record date after the Effective Time previously paid government or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends political subdivision or other distributions with a record date after the Effective Time and prior to surrender any agency or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesinstrumentality thereof.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time and LP Mergers Effective Time, as applicable, Parent shall appoint an select a financial institution reasonably acceptable to the Company to act as paying agent for the Public Merger and the LP Mergers (the “Exchange Paying Agent”) for and enter into a paying agent agreement, in form and substance reasonably acceptable to the purpose of Company, with such Paying Agent. Prior to the Effective Time and LP Mergers Effective Time, Parent shall deposit or cause to be deposited (i) mailing with the Paying Agent, cash in an amount sufficient to pay the aggregate Public Merger Consideration, LP Merger Consideration and receiving Election Forms and determining, Warrant Consideration (if applicable) required to be paid in accordance with Section 3.01 and Section 3.02 (such cash shall be referred to in this Article 3, Agreement as the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock“Exchange Fund”), and (ii) exchanging with the Company, cash in an amount sufficient to pay the aggregate RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration in accordance with Section 3.06 (such cash shall be referred to in this Agreement as the “Compensatory Award Fund”). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Public Merger and the LP Mergers contemplated by Section 3.01, Section 3.02 or Section 3.06, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Surviving Corporation, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable Siebel payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Public Merger Consideration and LP Merger Consideration contemplated to be issued pursuant to Section 3.01 and Section 3.02 out of the Exchange Fund. Parent shall cause the Surviving Corporation to pay the RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration contemplated to be paid pursuant to Section 3.06 out of the Compensatory Award Fund.
(b) As soon as reasonably practicable after the Effective Time and the LP Mergers Effective Time, as applicable, and in any event not later than the second (2nd) Business Day following the Effective Time and the LP Mergers Effective Time, as applicable, Parent will cause the Paying Agent to send to each holder of record (as of immediately prior to the Effective Time and the LP Mergers Effective Time) of (i) an outstanding share of Company Class A Common Stock represented by a Certificate or an outstanding Book-Entry Share immediately prior to the Effective Time (other than the Cancelled Shares and except for any Dissenting Shares and any unvested Company Restricted Stock Awards to be cancelled without payment in respect thereof pursuant to Section 3.06(c)) and (ii) an outstanding Operating Partnership Unit represented by a LP Certificate or an outstanding Book-Entry Unit immediately prior to the LP Mergers Effective Time (other than the Unvested Units, LP Class B Units or Cancelled Units): (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer LP Certificates (or effective affidavits of the Uncertificated loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, to the Exchange Paying Agent) in such form as Parent and the Company may reasonably agree, for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder effecting delivery of shares of Siebel Company Class A Common Stock that have been converted into outstanding immediately prior to the right Effective Time and Operating Partnership Units outstanding immediately prior to receive the Siebel LP Mergers Effective Time and entitled to LP Merger Consideration shall be entitled pursuant to receive, upon (i) surrender Section 3.02 to the Exchange Agent Paying Agent, and (y) instructions for use in effecting the surrender of a Certificate, together with a properly completed letter of transmittal, Certificates or (ii) receipt of an “agent’s message” by the Exchange Agent LP Certificates (or such other evidenceeffective affidavits of loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, if anyas applicable, of transfer as in exchange for the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Public Merger Consideration or LP Merger Consideration in respect of such form as Parent and the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case Company may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationreasonably agree.
(c) If Upon the surrender of a Certificate or LP Certificate (or affidavit of loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, including the Withholding Certificate from holders of Operating Partnership Units and such other documents as may be reasonably required pursuant to such instructions, the holder of such shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate as of immediately prior to the Effective Time or of such Book-Entry Share or Book-Entry Unit immediately prior to the Effective Time shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, as promptly as practicable (but in any portion event within two (2) Business Days), an amount in cash (less any applicable withholding Taxes payable in respect thereof) equal to the product obtained by multiplying (i) the number of shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate or of such Book-Entry Share or Book-Entry Unit by (ii) the Public Merger Consideration or LP Merger Consideration pursuant to the provisions of this Article III, and the Certificates, LP Certificates, Book-Entry Shares or Book-Entry Units surrendered shall forthwith be cancelled. In the event of a transfer of ownership of shares of Company Class A Common Stock or an Operating Partnership Unit that is not registered in the transfer records of the Siebel Company or the Operating Partnerships, as applicable, payment of the appropriate amount of Public Merger Consideration is to or LP Merger Consideration may be paid made to a Person other than the Person in whose name the Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit so surrendered is registered, if such Certificate or LP Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the transferred Uncertificated Paying Agent) or such Book-Entry Share or Book-Entry Unit shall be properly transferred. The Paying Agent will accept the Certificates, LP Certificates, Book-Entry Share or Book-Entry Unit upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with customary exchange practices. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit. Until so surrendered, the Certificates and the LP Certificates, Book-Entry Share or Book-Entry Unit shall be deemed from and after the Effective Time and the LP Mergers Effective Time to evidence only the right to receive the consideration payable in respect thereof pursuant to Section 3.01 or Section 3.02, as applicable.
(d) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Class A Common Stock and the number of Operating Partnership Units held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Public Merger Consideration and the LP Merger Consideration, as applicable (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(e) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit is registered, it shall be a condition to of such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay pay, or cause to be paid, any Transfer Taxes required by reason of the Exchange Agent any transfer or other taxes required as a result making of such cash payment to a Person other than the registered holder of such Certificate or Uncertificated the surrendered Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit or shall establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes Taxes have been paid or are not payable.
(df) After the Effective Time and LP Mergers Effective Time, as applicable, there shall be no further registration of transfers of shares of Siebel StockCompany Class A Common Stock or Operating Partnership Units that were issued and outstanding immediately prior to the Effective Time, as applicable. From and after the Effective Time and the LP Mergers Effective Time, as applicable, the outstanding shares of Company Class A Common Stock and Operating Partnership Units that are canceled pursuant to Section 3.02 represented by Certificates or LP Certificates immediately prior to the Effective Time, and the Book-Entry Shares or Book-Entry Units outstanding immediately prior to the Effective Time and LP Mergers Effective Time, as applicable, will no longer be outstanding and will be cancelled automatically and cease to exist and each holder thereof shall cease to have any rights with respect to such shares of Company Class A Common Stock and Operating Partnership Units, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time and the LP Mergers Effective Time, Certificates as applicable, Certificates, LP Certificates, Book-Entry Shares, Book-Entry Units or Uncertificated Shares the Company Warrants are presented to the Siebel Paying Agent, the Surviving Corporation, the Surviving Limited Partnerships or Parent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(eg) Any portion of the Siebel Merger Consideration made available by Parent to Exchange Fund (including the proceeds of any investments of the Exchange Agent pursuant to Section 3.10(aFund) that remains unclaimed by the holders of shares of Siebel Stock six months Company Class A Common Stock, Operating Partnership Units or the Company Warrants (if applicable) after the date which is one (1) year following the Effective Time shall be returned to Parent upon demandor an Affiliate thereof designated by Parent. Any holder of shares of Company Common Stock, and any such holder Operating Partnership Units or Company Warrants (if applicable) who has not exchanged his, her or its shares of Siebel Company Class A Common Stock for (including the Siebel Merger Consideration shares of the Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)) or Operating Partnership Units in accordance with this Section 3.10 3.03 prior to that time shall thereafter look only to Parent (as general unsecured creditors thereof) for payment delivery of the Siebel Public Merger Consideration, and LP Merger Consideration, Warrant Consideration (if applicable) or Black-Scholes Value (after giving effect to any dividends and distributions with respect thereto, required Tax withholdings) in respect of such holder’s shares without any interest thereonof Company Class A Common Stock, Operating Partnership Units or Company Warrants. The Company shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Certificates, LP Certificates, Book-Entry Shares or Book-Entry Units for the Public Merger Consideration, the LP Merger Consideration or the Warrant Consideration (if applicable). Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation or the Surviving Limited Partnerships shall not be liable to any Person, including any former holder of shares of Siebel Company Class A Common Stock, Operating Partnership Units, Company Warrants or Company Stock Awards, including for any amounts paid Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed To the fullest extent permitted by holders of shares of Siebel Stock two years after the Effective Time (or such earlier dateLaw, immediately prior to such time when the amounts date any Public Merger Consideration or LP Merger Consideration would otherwise escheat to or become the property of any Governmental Entity) Authority, such Public Merger Consideration and LP Merger Consideration shall become, to the extent permitted by applicable law, become the property of Parent, free and clear of any all claims or interest of any Person previously entitled thereto.
(fh) No dividends The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time and the LP Mergers Effective Time, as applicable, the Surviving Corporation or other distributions with respect the Surviving Limited Partnerships; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Class A Common Stock or Operating Partnership Units in the amount of such losses and (ii) no such investment shall have maturities that could prevent or materially delay payment obligations of the Parent to be made pursuant to Section 3.03. Any interest or income produced by such investments will be payable to Parent Stock constituting part of the Siebel or its designee as directed by ▇▇▇▇▇▇.
(i) All Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and no cash payment Vested Performance Consideration issued or paid upon conversion of the shares of Company Class A Common Stock (including the shares of the Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)), Operating Partnership Units or the Company Stock Awards, as applicable, in lieu accordance with the terms of fractional shares as provided in Section 3.11this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the holder such shares of any Certificates not surrendered Company Class A Common Stock, Operating Partnership Units, Company Warrants (if applicable) or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferredCompany Stock Awards, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 that were issued and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock outstanding immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 3 contracts
Sources: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an Equiniti Trust Company, LLC (formerly known as American Stock Transfer and Trust Company) as the paying agent (or such other nationally recognized paying agent designated by Parent and approved in writing by the Company) (the “Exchange Paying Agent”) to act as agent for the purpose Company’s stockholders who shall become entitled to receive the Per Share Merger Consideration. At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent the aggregate Per Share Merger Consideration (the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the aggregate Per Share Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the shortfall in such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by ▇▇▇▇▇▇; provided, that (i) mailing no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and receiving Election Forms following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and determining(iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of twelve (12) months after the Effective Time or the full payment of the aggregate Per Share Merger Consideration. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in accordance connection with this Article 3, the form of Siebel Merger Consideration to be received by each holder exchange of shares of Siebel Stock, Company Common Stock and (ii) exchanging the applicable Siebel payment of the Per Share Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharessuch shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel shares of Company Common Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent) Paying Agent for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby).
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Per Share Merger Consideration shall be entitled to receivereceive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) in the case of a book-entry transfer of shares of Company Common Stock, receipt of an a customary “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) ), and, in each case, delivery to the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part Paying Agent of such Siebel Merger Consideration (if any), at Parent’s option, shall other documents as may reasonably be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawthe Paying Agent. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Per Share Merger Consideration. No interest shall be paid or accrued for the benefit of any holder of Company Common Stock on any amount payable upon the surrender or transfer of any Certificate.
(c) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payableapplicable.
(d) After All Per Share Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Paying Agent or the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Per Share Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six on the date that is twelve (12) months after the Effective Time Closing Date shall be returned delivered to Parent or the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Per Share Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent the Surviving Corporation as general creditors thereof for payment of the Siebel Per Share Merger Consideration, without interest. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of Parent or its designee, free and clear of all claims or interest of any dividends and distributions with respect Person previously entitled thereto, in respect of such shares without any interest thereon. Notwithstanding anything in this Agreement to the foregoingcontrary, Parent none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall not be liable to any former holder of shares of Siebel Company Common Stock or any Company Equity Awards for any amounts paid amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretoLaws.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Chuy's Holdings, Inc.), Merger Agreement (Darden Restaurants Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Purchaser shall appoint an as agent (the “Exchange Agent”"EXCHANGE AGENT") a commercial bank or trust company, reasonably acceptable to the Company and having at least $50,000,000 in capital, surplus and undivided profits, for the purpose of exchanging certificates which immediately prior to the Effective Time represented Shares ("CERTIFICATES") for the Merger Consideration which holders of Certificates are entitled to receive pursuant to this Article III. Immediately prior to the Effective Time, Purchaser shall deposit in trust with the Exchange Agent cash in an aggregate amount equal to the product of (i) mailing the number of Shares outstanding immediately prior to the Effective Time (other than the Shares owned by Purchaser or the Company and receiving Election Forms any direct or indirect Subsidiary of the Company, and determining, in accordance with this Article 3, the form of Siebel Merger Consideration Shares as to be received by each holder of shares of Siebel Stock, which appraisal rights have been demanded) and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (such amount being hereinafter referred to as the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”"PAYMENT FUND"). Parent The Payment Fund shall make available to be invested by the Exchange Agent, Agent as needed, directed by Purchaser (so long as such directions do not impair the applicable Siebel Merger Consideration to be issued or paid in respect rights of the Certificates holders of Shares) in direct obligations of the United States of America, obligations for which the full faith and credit of the Uncertificated SharesUnited States of America is pledged to provide for the payment of principal and interest, and any net earnings with respect thereto shall be paid to Purchaser as and when requested by Purchaser. The Exchange Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 3.2(b) out of the Payment Fund. The Payment Fund shall not be used for any other purpose except as provided herein. Promptly after the Effective Time, Parent shall Purchaser will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time record of a Certificate or Certificates, other than holders of Certificates which represent Shares canceled and retired pursuant to Section 3.1(b) hereof, (i) a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title with respect to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) and (ii) instructions for use in such exchange; provided, that any such letter effecting the surrender of transmittal and instructions shall be sent to holders of Uncertificated Shares only to Certificates for payment therefore (the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby"EXCHANGE INSTRUCTIONS").
(b) Each holder of shares of Siebel Stock Certificates that represent Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed and executed letter of transmittal, or (ii) receipt of an “agent’s message” transmittal covering such Certificates and any other documents reasonably required by the Exchange Agent (or such other evidenceInstructions, if any, of transfer as will promptly receive the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of such Certificates as provided in this Article III, without any interest thereon, less any required withholding of taxes, and the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until Certificates so surrendered or transferredshall forthwith be canceled. After the Effective Time, as the case may beand until so surrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationConsideration except as otherwise provided herein or by applicable law.
(c) If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to the loss, theft or destruction of such Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration.
(d) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name registered holder of the surrendered Shares represented by the Certificate or the transferred Uncertificated Share is registeredCertificates surrendered in exchange therefore, it shall be a condition to such payment that (i) either such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Shares or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance The Exchange Agent may make any tax withholdings required by law if not provided with the procedures set forth in appropriate documents. For purposes of this Section 3.10Agreement, "PERSON" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
Surrender and Payment. (a) Prior to the Election Record DateAcceptance Time, Parent shall appoint (pursuant to an agreement in a form reasonably acceptable to the Company) the Company’s transfer agent or another agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, making payments to the form holders of Siebel Merger Consideration Shares entitled to be received by each holder of shares of Siebel Stock, receive the Offer Price pursuant to Section 2.01 and (ii) exchanging for the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock Shares represented by book entry (the “Uncertificated Shares”). At or prior to the Acceptance Time, Parent or one of its Affiliates shall make available to deposit with the Exchange Agent, as neededfor the benefit of the holders of Shares validly tendered (and not validly withdrawn) pursuant to the Offer, cash in an amount sufficient to pay the applicable Siebel aggregate Offer Price required to be paid pursuant to Section 2.01(f). At or prior to the Effective Time, Parent or one of its Affiliates shall deposit with the Exchange Agent, for the benefit of holders of Shares issued and outstanding immediately prior to the Effective Time, cash in an amount sufficient to pay the aggregate Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares (such cash, together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any other purpose and, in the event that the Payment Fund shall at any time be insufficient to make the payments of the Offer Price or the Merger Consideration contemplated by this Agreement, Parent shall, or shall cause one of its Affiliates to, promptly deposit additional funds with the Exchange Agent in an amount sufficient to make such payments. Promptly after the Effective Time, and in any event not later than three Business Days following the Effective Date, Parent shall send, or shall cause the Exchange Agent to send, send to each record holder of Siebel Stock at Shares as of the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock payable for each Share represented by a Certificate or for each Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)From and after the Effective Time, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until and until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Table of Contents Corporation, Parent or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 3.
(e) Any portion of the Siebel Merger Consideration made available by Parent to deposited with the Exchange Agent pursuant to Section 3.10(a3.07(a) (and any interest or other income earned thereon) that remains unclaimed by the holders any holder of shares of Siebel Stock six Shares 12 months after the Effective Time shall be returned to Parent or one of its Affiliates, upon demand, and any such holder who that has not exchanged shares of Siebel Stock its Shares for the Siebel Merger Consideration in accordance with this Section 3.10 3.07 prior to that such time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares Shares, without any interest thereon. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of shares of Siebel Stock Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares Shares as of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.10(a3.07(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent, Parent or one of its Affiliates upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent and Company shall jointly appoint an agent a depositary (the “Exchange Agent”"Depositary") for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock for the Cash Consideration and the Split-Off Consideration. The Depositary shall be Bank of America National Trust and Savings Association. Parent will pay to the Depositary immediately prior to the Effective Time, the Cash Consideration, and the Company shall cause A&S to deposit with the Depositary the Split-Off Consideration (the “Certificates”) or (B) for uncertificated comprised of shares of Siebel A&S Common Stock (the “Uncertificated Shares”and cash sufficient to pay any fractional shares). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates shares of Company Common Stock. For purposes of determining the Cash Consideration and the Uncertificated SharesSplit-Off Consideration to be so paid, Parent and Company shall assume that no holder of shares of Company Common Stock will perfect his right to appraisal of his shares of Company Common Stock. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent Depositary to send, but in no event later than three (3) business days after the Effective Time, to each record holder of Siebel shares of Company Common Stock at the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer certificates representing shares of the Uncertificated Shares Company Common Stock to the Exchange AgentDepositary) and instructions for use in such exchange; providedeffecting the surrender of shares of Company Common Stock in exchange for the Cash Consideration and Split-Off Consideration, that and no interest shall accrue or be paid on any such letter Cash Consideration payable upon the surrender of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebycertificates.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Cash Consideration shall be entitled to receiveand Split-Off Consideration, upon (i) surrender to the Exchange Agent Depositary of a Certificatecertificate or certificates properly representing such shares of Company Common Stock, together with a properly completed letter of transmittaltransmittal covering such shares of Company Common Stock, or (ii) receipt of an “agent’s message” by will be entitled to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookCash Consideration and Split-entry transfer of Uncertificated Shares, the Siebel Merger Off Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The such shares of Parent Company Common Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall less any amounts required to be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required withheld under applicable lawfederal, state, local or foreign income tax regulations. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent certificate shall, after the Effective Time Time, represent for all purposes purposes, only the right to receive such Siebel Merger Cash Consideration and Split-Off Consideration. No certificates representing fractional shares of A&S Common Stock shall be issued upon the surrender for exchange of shares of Company Common Stock, and such fractional share interests will not entitle the owner thereof to vote or to any other rights as a shareholder of A&S. Each holder of shares of Company Common Stock who would otherwise be entitled to receive a fractional share of A&S Common Stock shall receive from the Depositary an amount in cash (the "Fractional Share Payment") equal to the product obtained by multiplying (i) the fractional share interest to which such holder (after taking into account all shares of Company Common Stock held at the Effective Time by such holder) would otherwise be entitled by (ii) the mean between the high and low trading prices of A&S Common Stock on the first full day of trading following the Closing (as defined in Section 3.7 below) (the "Trading Value").
(c) If any portion of the Siebel Merger Cash Consideration and Split-Off Consideration is to be paid to a Person other than the Person registered holder of the shares of Company Common Stock represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it shall be a condition to such payment that (i) either such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent Depositary any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share shares of Company Common Stock or establish to the satisfaction of the Exchange Agent Depositary that such taxes have tax has been paid or are is not payable. For purposes of this Merger Agreement, "Person" means an individual, a corporation, limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Essef Corp), Merger Agreement (Pentair Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Acquirer shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”"EXCHANGE AGENT") for the purpose of exchanging certificates representing Company Shares (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A"CERTIFICATES") for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall Acquirer will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Company Shares. Promptly after the Effective Time, Parent shall Acquirer will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock record at the Effective Time of Company Shares a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer to the Exchange Agent) in such form as the Company and Acquirer may reasonably agree, for use in effecting delivery of the Uncertificated Company Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock Company Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by will be entitled to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock Company Shares represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCertificate. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a1.3(a) that remains unclaimed by the holders of shares of Siebel Stock six months Company Shares one year after the Effective Time shall be returned to Parent Acquirer, upon demand, and any such holder who has not exchanged shares of Siebel Stock such holder's Company Shares for the Siebel Merger Consideration in accordance with this Section 3.10 1.3 prior to that time shall thereafter look only to Parent Acquirer for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereonholder's Company Shares. Notwithstanding the foregoing, Parent Acquirer shall not be liable to any holder of shares of Siebel Stock Company Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Acquirer Common Stock constituting part of issued in the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 1.3. Following Subject to the effect of applicable laws, following such surrender or transfersurrender, there shall be paid, without interest, to the Person record holder of the Acquirer Common Stock issued in whose name the securities of Parent have been registered, exchange therefor (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends and other distributions payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date respect of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions Acquirer Common Stock with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender on or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from date of such surrender and after not previously paid and (ii) at the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.appropriate payment
Appears in 2 contracts
Sources: Merger Agreement (Diamond Multimedia Systems Inc), Merger Agreement (Diamond Multimedia Systems Inc)
Surrender and Payment. (a) Prior Wave shall authorize one or more transfer agent(s) reasonably acceptable to the Election Record Date, Parent shall appoint an agent Stone to act as Exchange Agent hereunder (the “Exchange Agent”) with respect to the Merger. At or prior to the Effective Time, Wave shall deposit with the Exchange Agent for the purpose benefit of (i) mailing and receiving Election Forms and determiningthe holders of Stone Shares, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 3.2 through the Exchange Agent, as neededthe aggregate amount of Merger Consideration payable in connection with the Merger (collectively, the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the applicable Siebel Merger Consideration in exchange for surrendered Stock Certificates pursuant to be issued or paid in respect Section 3.1 out of the Certificates and Exchange Fund. Except as contemplated by Section 3.2(d), the Uncertificated Shares. Exchange Fund shall not be used for any other purpose.
(b) Promptly after the Effective Time, Parent shall send, or Wave shall cause the Exchange Agent to send, send to each record holder of Siebel record of Stock at the Effective Time Certificates a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title with respect to the Stock Certificates shall pass, only upon proper delivery of the Stock Certificates or transfer of the Uncertificated Shares to the Exchange Agent) ), and instructions for use in such exchange; providedeffecting the surrender of Stock Certificates for payment therefor in accordance herewith (together, that any the “Exchange Instructions”). The Exchange Agent shall also provide for holders of Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to Stock Certificates in exchange for the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person registered holder of the Stone Shares represented by the Stock Certificate(s) surrendered in whose name the surrendered Certificate exchange therefor, no such issuance or the transferred Uncertificated Share is registered, it payment shall be a condition to such payment that made unless (i) either such Certificate shall be the Stock Certificate(s) so surrendered have been properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay issuance has paid to the Exchange Agent any transfer or other taxes required as a result of such payment issuance to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the Exchange Agent’s satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payableapplicable. For purposes of this Agreement, “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including any governmental or regulatory authority or agency (a “Governmental Authority”).
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Healthtronics Surgical Services Inc), Merger Agreement (Prime Medical Services Inc /Tx/)
Surrender and Payment. (a) Prior At or prior to the Election Record Datedate that is not less than two (2) months prior to the anticipated Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, exchanging Certificates representing shares of Company Common Stock for the Merger Consideration in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)IV. Parent shall make available to the Exchange Agent, As promptly as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly reasonably practicable after the Effective Time, Parent shall send, or shall cause appointment of the Exchange Agent to send(but in any event within ten (10) Business Days after the date thereof), to each record holder of Siebel Stock at Parent and the Effective Time Company will develop and finalize a letter of transmittal which shall be in customary form and instructions have such other provisions as to which Parent and the Company may reasonably agree (which letter of transmittal shall specify that the delivery of the Merger Consideration shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) (the “Letter of Transmittal”) for use in effecting delivery of shares of Company Common Stock to the Exchange Agent. At or as promptly as reasonably practicable after finalizing such exchangeLetter of Transmittal (but in any event within ten (10) Business Days after the date thereof and at least ten (10) Business Days prior to the Effective Time), Parent shall cause the Exchange Agent to send to each holder of record of shares of Company Common Stock on the date thereof, and from time to time thereafter as requested by Parent or the Company, a Letter of Transmittal, together with instructions for effecting the surrender of Certificates in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, in trust for the benefit of the holders of shares of Company Common Stock (other than any Cancelled Shares), for exchange in accordance with this Article IV, evidence of book-entry shares (or certificates if requested by any such holder) representing the number of shares of Parent Common Stock and an amount of cash, in each case, sufficient to pay to the holders of shares of Company Common Stock the Per Share Cash Consideration and the Per Share Stock Consideration (such certificates or book-entry shares for shares of Parent Common Stock and cash in Dollars, together with cash in lieu of fractional shares in accordance with Section 4.3 and any dividends or distributions with respect to the shares of Parent Common Stock in accordance with Section 4.2(h), being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 4.1 in exchange for outstanding shares of Company Common Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 4.1 out of the Exchange Fund. Parent agrees to make available to the Exchange Agent from time to time as needed, any cash in lieu of fractional shares of Parent Common Stock to be issued and paid in consideration therefor pursuant to Section 4.3 and any dividends or distributions to which such holder is entitled pursuant to Section 4.2(h) of this Agreement. Except as specified in this Section 4.2, the Exchange Fund shall not be used for any other purpose.
(c) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis in (i) short-term direct obligations of the United States of America with maturities of no more than thirty (30) days or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Company Common Stock pursuant to this Article IV. If for any such letter of transmittal and instructions reason (including losses) the cash in the Exchange Fund shall be sent insufficient to holders fully satisfy all of Uncertificated Shares only the payment obligations to the extent determined necessary be made in cash by Oracle and the Exchange Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to effect the transactions contemplated herebydeficiency in the amount of cash required to fully satisfy such cash payment obligations.
(bd) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter and validly executed Letter of transmittalTransmittal in accordance with the instructions thereto, or (ii) receipt of an “agent’s message” by the Exchange Agent (or and such other evidencedocuments as may be required pursuant to such instructions, if any, of transfer as the Exchange Agent may reasonably requestwill be entitled to receive (i) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate one or Uncertificated Share. The more shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, which shall be in uncertificated book-entry form, form unless a physical certificate is requested by a holder requested) representing, in the aggregate, the whole number of shares of Siebel Parent Common Stock that such holder has the right to receive pursuant to Section 4.1 and (ii) a check (or, with respect to the Principal Stockholder and the holders of shares of Company Common Stock set forth on Section 4.2(d) of the Company Disclosure Letter, by wire transfer of immediately available Dollar funds) in an amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 4.1 and the other provisions contained in this Article IV, including cash payable in lieu of fractional shares in accordance with Section 4.3 and dividends and other distributions in accordance with Section 4.2(h). No interest shall be paid or is otherwise required under applicable lawaccrued on any Merger Consideration, cash payable in lieu of fractional shares in accordance with Section 4.3 or dividends and other distributions in accordance with Section 4.2(h). Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel the Merger Consideration, cash payable in lieu of fractional shares in accordance with Section 4.3 and dividends and other distributions in accordance with Section 4.2(h).
(ce) If any portion of the Siebel Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition of such payment that the Person requesting such payment shall pay, or cause to be paid, any transfer or other Taxes required by reason of the transferred Uncertificated Share making of such cash payment to a Person other than the registered holder of the surrendered Certificate, or required for any other reason relating to such holder or requesting Person, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to such payment the registration thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay pay, or cause to be paid, to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(df) After At the Effective Time, the share transfer books of the Company shall be closed and thereafter, there shall be no further registration of transfers Transfers of shares of Siebel Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except the right to receive the consideration provided for, and in accordance with the procedures set forth, in this Article IV or as otherwise provided herein or by Applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Exchange Agent, the Surviving CorporationCorporation or Parent, they such Certificates shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article IV.
(eg) Any portion of the Siebel Merger Consideration made available by Parent to Exchange Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by undistributed to the holders of shares of Siebel Company Common Stock six months one (1) year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged his, her or its shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 4.2 prior to that time shall thereafter look only to Parent for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereonholder’s shares. Notwithstanding the foregoing, Parent neither Parent, Merger Sub, the Company nor the Surviving Corporation shall not be liable to any holder of shares of Siebel Company Common Stock for any Merger Consideration or other amounts paid delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts portion of the Exchange Fund remaining unclaimed by holders of shares of Siebel Company Common Stock two three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall becomeshall, to the extent permitted by applicable lawApplicable Law, become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(fh) No dividends or other distributions with respect to shares of Parent Common Stock constituting part of issued in the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 4.2. Following such surrender surrender, subject to the effect of escheat, Tax or transferother Applicable Law, there shall be paid, without interest, to the Person in whose name record holder of the securities shares of Parent have been registered, Common Stock issued in exchange therefor (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends and other distributions payable in lieu respect of fractional such shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Parent Common Stock with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and not previously paid and (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender such surrender. For purposes of dividends or transfer payable with other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to such securitiesbe issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(gi) Any portion of the Siebel Merger Consideration made available to deposited with the Exchange Agent pursuant to this Section 3.10(a) or Section 3.11 4.2 to pay for shares of Siebel Stock Dissenting Shares for which appraisal rights shall have been perfected shall be returned to Parent, Parent upon demandthe settlement or final and non-appealable adjudication of any claim for appraisal rights asserted with respect to such Dissenting Shares.
(hj) Certificates representing shares All Merger Consideration issued and paid to a holder of Oracle Company Common Stock immediately prior to upon conversion of the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 251(g4.2(h) or Section 4.3) shall be deemed to have been issued and paid in full satisfaction of DGCLall rights pertaining to such Company Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Stock (the “Certificates”) or and (Bii) for uncertificated shares of Siebel Company Stock (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall deposit with or otherwise make available to the Exchange Agent, as neededin trust for the benefit of holders of shares of Company Stock, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Parent agrees to make available to the Exchange Agent from time to time as needed, any dividends or distributions to which such holder is entitled pursuant to Section 2.03(f) of this Agreement. Promptly after the Effective Time, and in any event no later than the 10th Business Day following the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Stock at the Effective Time a letter of transmittal and instructions reasonably acceptable to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Company Stock or is otherwise required under applicable lawApplicable Law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationConsideration and the right to receive any dividends or other distributions pursuant to Section 2.03(f).
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration deposited with or otherwise made available by Parent to the Exchange Agent pursuant to Section 3.10(a2.03(a) that remains unclaimed by the holders of shares of Siebel Company Stock six nine months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of the Siebel Merger Consideration, and any dividends and distributions with respect theretothereto pursuant to Section 2.03(f), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two five years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.112.07, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 2.07 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred by a holder of Company Stock in connection with the Siebel Merger Consideration made available Merger, and the filing of any related Tax returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe sole responsibility of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Xto Energy Inc), Merger Agreement (Exxon Mobil Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent (the “"Exchange Agent”") reasonably acceptable to the Company for the purpose of exchanging certificates representing shares of Company Stock (ithe "Certificates") mailing and receiving Election Forms and determiningfor the Merger Consideration. At the Effective Time, in accordance Parent will deposit with this Article 3, the form of Siebel Exchange Agent the Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharesshares of Company Stock. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall will be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel each share of Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCertificate. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 3.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Company Stock six months one year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.03 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Stock for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two three years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Central Newspapers Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, paying the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, as provided in Section 1.2(a) and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Section 1.6. Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after Contemporaneously with the Effective Time, Parent shall senddeposit with and make available to (or shall cause to be deposited with and made available to) the Exchange Agent cash sufficient to pay the full Closing Cash Consideration in respect of shares of Company Common Stock and Company Warrants, but not any Closing Cash Consideration in respect of any Excluded Shares, Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or the Company PSU Cash Consideration (the “Exchange Fund”). If, for any reason (including losses) the Exchange Fund is inadequate to pay the Closing Cash Consideration in respect of the shares of Company Common Stock and Company Warrants (excluding any Closing Cash Consideration in respect of any Excluded Shares, Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or the Company PSU Cash Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit with and make available to the Exchange Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Exchange Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be payable to the Parent or the Surviving Corporation, as the Parent directs. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to send, send to each record holder of Siebel shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary or any Subsidiary of the Company or Parent) a letter of transmittal transmittal, in form and substance reasonably acceptable to the Company, and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares shares of Company Common Stock to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only ). Notwithstanding anything to the extent determined necessary by Oracle contrary contained herein, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the Exchange Agent to effect the transactions contemplated herebyCVR Agreement.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares), the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The such holder’s shares of Parent Stock constituting part Company Common Stock; provided that no portion of such Siebel the Merger Consideration (if any), at Parent’s option, shall relating to the CVRs will be in uncertificated book-entry form, paid unless a physical certificate and until it is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawto be paid pursuant to the CVR Agreement. Until so surrendered or transferredthe Merger Consideration in respect of a given share of Company Common Stock has been paid, as the case may be, each such Certificate or Uncertificated Share share of Company Common Stock shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of shares of Company Common Stock.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the a transferred Uncertificated Share share of Company Common Stock is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share share of Company Common Stock shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share share of Company Common Stock or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After Upon the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Siebel Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares shares of Company Common Stock are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
(e) Any portion of the Siebel Merger Closing Cash Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a1.3(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six nine (9) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock nine (9) months after deposit with the Rights Agent, in each case shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 1.3 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions The agreement with respect to the Exchange Agent shall provide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent Stock constituting part of or, after the Siebel Merger ConsiderationEffective Time, and no cash payment in lieu of fractional shares as the Surviving Corporation; provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, that (i) no such investment (including any losses thereon) shall relieve Parent or the Exchange Agent from making the payments required by this Article I, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America or guaranteed by the United States of America, in commercial paper obligations rated P-1 or A-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing. Any interest or income produced by such surrender investments will be payable to the Surviving Corporation or transferParent, as directed by ▇▇▇▇▇▇. To the extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Exchange Agent to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Exchange Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the amount of any cash payable in lieu of fractional shares the Exchange Fund so as to which such Person ensure that the Exchange Fund is entitled pursuant at all times fully available for distribution and maintained at a level sufficient for the Exchange Agent to make the payments contemplated by Section 3.11 1.2 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesSection 1.6.
(g) Any portion of the Siebel Merger Closing Cash Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Surrender and Payment. (a) Prior At or prior to the Election Record DateEffective Time, Parent shall appoint an make available to the Person authorized to act as exchange agent in connection with the transactions contemplated by this Agreement, which Person shall be selected by Parent and be reasonably acceptable to the Company (the “Exchange Agent”) for ), pursuant to any agreement reasonably acceptable to Parent and the purpose of Company entered into prior to the Effective Time, immediately available funds equal to the aggregate Merger Consideration (such cash, collectively being referred to as the “Exchange Fund”). Such cash funds may be invested by the Exchange Agent as directed by Parent; provided that (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, no such investment or losses thereon shall affect the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stockor other amounts payable hereunder, and (ii) exchanging if, for any reason (including if Dissenting Shares cease to be Dissenting Shares), the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (cash in the “Certificates”) or (B) for uncertificated shares of Siebel Stock (Exchange Fund becomes insufficient to make the “Uncertificated Shares”). payments contemplated by this Article 2, then Parent shall make available promptly provide additional cash to the Exchange AgentAgent for the benefit of the former stockholders of the Company sufficient to make the payments contemplated by this Article 2 and (iii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Parent directs.
(b) Promptly after the Effective TimeTime (but not later than three (3) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent) and shall be in such form and have such other or different provisions as Parent shall reasonably designate for use in such exchange; provided, that any such letter . Upon proper surrender of transmittal the Certificates for exchange (or affidavits of loss in lieu thereof) and instructions shall be sent to holders cancellation or transfer of the Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a CertificateAgent, together with a such properly completed letter of transmittal, the holder of such Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor a check representing an amount equal to the product of (i) the number of shares of Company Stock represented by such Certificate or Uncertificated Shares multiplied by (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if anyrounded up to the nearest whole cent), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger Consideration. The Parent, the Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the transfer and conversion of the Company Stock in accordance with this Agreement.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred transferred, accompanied by all documents reasonably required to evidence and effect such transfer, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) The Merger Consideration paid in accordance with the terms of this Article 2 upon conversion of any shares of the Company Stock shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such shares of the Company Stock. From and after the Effective Time, subject to Delaware Law in the case of Dissenting Shares, all holders of Certificates and Uncertificated Shares shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such Certificates or Uncertificated Shares have been converted pursuant to this Agreement upon the surrender of such Certificate or Uncertificated Share in accordance with this Article 2. After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the former holders of shares of Siebel Company Stock six months after as of the one year anniversary of the Effective Time shall be returned to Parent Parent, upon demand, and any such holder . Any former stockholders of the Company who has have not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior to that time Article 2 shall thereafter look only to Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of each share of Company Stock as such shares stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Subsidiary, the Company, the Exchange Agent or any other person shall not be liable to any former holder of shares of Siebel Company Stock for any amounts paid amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Notwithstanding any other provision of shares this Agreement, any portion of Siebel Stock two years after the Effective Time (or such earlier dateMerger Consideration to be paid in accordance with this Article 2 that remains undistributed to any former holder of Company Stock, as of immediately prior to such time when the amounts date on which the Merger Consideration that would otherwise escheat to or become the property of any Governmental Entity) shall becomeAuthority, shall, to the extent permitted by applicable lawApplicable Law, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Amc Entertainment Inc), Merger Agreement (Carmike Cinemas Inc)
Surrender and Payment. (a) Prior to the Election Record DateAcceptance Time, Parent shall appoint an a United States bank and trust company reasonably acceptable to the Company as agent (the “Exchange Paying Agent”) for the purpose of exchanging (i) mailing and receiving Election Forms and determining, in accordance with this Article 3for the Offer Price, the form of Siebel Merger Consideration Shares validly tendered and not validly withdrawn pursuant to be received by each holder of shares of Siebel Stock, Section 2.1 and (ii) exchanging for the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock Shares (the “Uncertificated Shares”), in each case, other than Shares held by the Company as treasury stock, the Company Subsidiaries, Parent or Merger Sub or their affiliates (as defined in Section 251(h) of the DGCL). The Company and Parent shall make available enter into a paying agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Exchange Company and Parent prior to the Acceptance Time. At or prior to the Effective Time, Parent shall deposit with the Paying Agent (or shall cause the Merger Sub to deposit with the Paying Agent), as needed, cash sufficient to pay the applicable Siebel aggregate Offer Price payable pursuant to Section 2.1(e) and the aggregate Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares (such cash, the “Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.3(g)), Parent shall promptly deliver, or cause to be delivered (including by causing the Surviving Corporation, following the Effective Time, to deliver), additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event within three (3) Business Days after the Effective Time), Parent the Surviving Corporation shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock Shares at the Effective Time (other than Parent), a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any with the form and substance of such letter of transmittal and instructions shall to be sent reasonably agreed to holders of Uncertificated Shares only by Parent and the Company and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyAcceptance Time.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed and validly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock payable for each such Share represented by a such Certificate or for each such Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, transferred (as the case may be) to the Paying Agent, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such ▇▇▇▇▇▇.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent and Parent that such taxes have Tax has been paid or are is not payable.
(d) After The cash in the Consideration Fund shall be invested by the Paying Agent as directed by ▇▇▇▇▇▇; provided, however, that any such investments shall be in (i) short-term obligations of the United States of America with maturities of no more than three (3) months or guaranteed by the United States of America and backed by the full faith and credit of the United States of America; (ii) commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from ▇▇▇▇▇’▇ Investors Service, Inc. or from S&P Global Ratings, a division of S&P Global Inc.; or (iii) certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money markets deposit accounts issued or offered by, any domestic office of any commercial bank organized under the Laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of the Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a) and shall be paid as it directs. No investment of the Consideration Fund shall relieve any Person from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of the Company’s stockholders in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(e) From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a3.3(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock six months Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time Time, to the extent permitted by applicable Law, shall be returned to Parent the Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a), upon demand, and any such holder who has not exchanged shares of Siebel Stock such Shares for the Siebel Merger Consideration in accordance with this Section 3.10 3.3 prior to that time shall thereafter look only to Parent for payment such party only as general creditors of such Party with respect to the Merger Consideration that may be payable upon due surrender of the Siebel Merger ConsiderationCertificates or Uncertificated Shares held by them, without interest and less any dividends and distributions with respect thereto, in respect of such shares without any interest thereonrequired withholding pursuant to Section 3.8. Notwithstanding the foregoing, Parent none of Parent, the Company nor any of their Affiliates shall not be liable to any holder of shares of Siebel Stock Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years Shares that have been converted into the right to receive the Merger Consideration one (1) year after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, become to the extent permitted by applicable law, Law the property of ParentParent or the Company, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a3.3(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parentthe Party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.3(a), upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Revance Therapeutics, Inc.), Merger Agreement (Revance Therapeutics, Inc.)
Surrender and Payment. (a) Prior At or prior to the Election Record DateClosing, Parent shall appoint an agent a United States bank or trust company or other independent financial institution in the United States (the “Paying and Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent and exchange agent for the purpose of (i) mailing Merger and receiving Election Forms and determining, in accordance with this Article 3, to deliver the form of Siebel Merger Consideration to be received by each holder former stockholders of shares of Siebel Stock, the Company. The Company and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, as neededwhich agreement shall set forth the duties, the applicable Siebel Merger Consideration to be issued or paid in respect responsibilities and obligations of the Certificates Paying and Exchange Agent consistent with the Uncertificated Sharesterms of this Agreement. Promptly after the Effective TimeTime on the Closing Date, Parent shall senddeposit (or cause to be deposited) with the Paying and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Paying and Exchange Agent in accordance with this Agreement (such cash and Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in favor of the Merger but who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying and Exchange Agent to send, mail to each record holder of Siebel Stock at stockholder whose shares were converted into the Effective Time right to receive Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal and instructions (which transmittal, in customary form, that shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be effecteddeemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Book Entry Shares to the Paying and Exchange AgentAgent and (ii) instructions for use in such exchange; providedeffecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, that any such the form and substance of which letter of transmittal and instructions shall be sent as reasonably agreed to holders of Uncertificated Shares only by the Company and Parent and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent (in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe required pursuant to such instructions, the Siebel holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in respect connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the Siebel Stock represented by a Certificate issuance of any fractional shares or Uncertificated Sharedividends or distributions payable with respect to Share Consideration. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to of such payment exchange that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment exchange shall pay to the Paying and Exchange Agent any transfer or other taxes Taxes required as a result by reason of such payment of the Merger Consideration to a Person other than the registered holder of such stockholder owning the Book Entry Share transferred or Certificate surrendered, or Uncertificated Share or shall establish to the reasonable satisfaction of the Paying and Exchange Agent that such taxes have Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are not payableinsufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) After At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of the shares of Siebel StockCompany Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Book Entry Shares are presented to the Siebel Surviving CorporationCorporation or the Paying and Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration pursuant to this Article IV, in accordance with the procedures set forth in this Section 3.10except as otherwise provided by Law.
(e) Any portion of the Siebel Merger Consideration made available by Parent to Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by the holders of shares of Siebel Stock six months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent upon demand, and any such holder or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the Siebel their claim for Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying and Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of shares of Siebel Stock for any amounts paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (If any Certificate or such earlier dateBook Entry Share shall not have been surrendered or transferred, immediately respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity) shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable lawLaw, become the property of ParentParent or the Surviving Corporation, free and clear any stockholder of any claims such Certificate or interest Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of any Person previously entitled theretotheir claim for Merger Consideration in respect thereof.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock constituting part of with a record date after the Siebel Merger ConsiderationEffective Time, and no cash payment in lieu of fractional shares as provided in pursuant to Section 3.11, shall 4.1(d) will be paid to the holder holders of any unsurrendered Certificates not surrendered or Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of any Uncertificated Shares not transferred until record of such Certificates or Uncertificated Book Entry Shares are surrendered shall surrender such Certificates or transferredBook Entry Shares. Subject to applicable Law, as following surrender of any such Certificates or Book Entry Shares, the case may be, as provided in this Section. Following such surrender or transfer, there Paying and Exchange Agent shall be paiddeliver to the holders thereof, without interest, to the Person in whose name the securities of Parent have been registered, interest (i) at the time of promptly after such surrender or transfersurrender, the amount of any cash Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 4.1(d) and the amount of all any such dividends or other distributions with a record date after the Effective Time previously and theretofore paid or payable on the date of such surrender with respect to such securities Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to such surrender or transfer payable with respect to such securitiesParent Common Stock.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “"Exchange Agent”") to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated "Book-Entry Shares”"). On and after the Effective Time, Parent shall make available deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, as needed, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the shares of Company Common Stock and Company Preferred Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the "Payment Fund") in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and Company Preferred Stock for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock and Company Preferred Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify specify
26995100v.1 that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock or Company Preferred Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock or Company Preferred Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “"agent’s 's message” " by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock or Company Preferred Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock or Company Preferred Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Stock six (6) months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock or Company Preferred Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.02 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock or Company Preferred Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock 26995100v.1 or Company Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Merger Sub shall enter into an agreement with the Company’s transfer agent or another bank or trust company mutually acceptable to Parent shall appoint an and the Company to act as paying agent in connection with the Merger (the “Exchange Paying Agent”) for to receive the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect which stockholders of the Certificates and the Uncertificated SharesCompany shall become entitled pursuant to this Article II. Promptly after At or prior to the Effective Time, Parent shall send, deposit (or shall cause to be deposited) with the Exchange Paying Agent cash in an amount sufficient to send, make all payments pursuant to each record holder this Article II owed in respect of Siebel Stock at Shares represented by Certificates or Book-Entry Shares issued and outstanding immediately prior to the Effective Time (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay all charges and expenses of the Paying Agent in connection with the exchange of Shares for the Merger Consideration contemplated by this Article II.
(b) Promptly after the Effective Time and in any event not later than the fifth Business Day following the Effective Time, the Surviving Corporation shall direct the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”), and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 2.1(a), (i) a form of letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon (x) adherence to the procedures set forth in the letter of transmittal and (y) in the case of Shares represented by Certificates, only upon proper delivery of the such Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent, and shall be in such form and have such other provisions as Parent and the Company may reasonably agree and shall be prepared prior to Closing) and (ii) instructions for use in such exchange; providedeffecting the surrender of Certificates and Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 2.1(a). Surrender of any Book-Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry. Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, that any together with such letter of transmittal transmittal, duly completed and validly executed in accordance with the instructions shall thereto, and such other documents as may reasonably be sent to holders of Uncertificated Shares only to required by the extent determined necessary by Oracle and Paying Agent, the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration such Certificate or Book-Entry Share shall be entitled to receivereceive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or each Book-Entry Share so surrendered (subject to deduction for any required withholding Tax), upon (i) surrender to and the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, so surrendered shall forthwith be cancelled. No interest will be paid or accrued for the benefit of transfer as holders of Certificates or Book-Entry Shares on the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate Certificates or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated bookBook-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationEntry Shares.
(c) If any portion payment of the Siebel Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Book-Entry Share is registered, it shall be a condition to such of payment that (i) either the Person requesting such payment present proper evidence of transfer and, if applicable, the surrendered Certificate shall be properly endorsed or shall and otherwise be in proper form for transfer or or, in the case of Book-Entry Shares, the Person in whose name such Uncertificated Share Book-Entry Shares are registered shall be properly transferred have delivered to the Paying Agent instruments of transfer in such form as the Paying Agent may require in accordance with its customary procedures for the transfer for securities represented by book entry and (ii) the Person requesting such payment shall pay to the Exchange Agent have paid any transfer or and other taxes Taxes required as a result by reason of such the payment of the Merger Consideration to a Person other than the registered holder of such the Certificate or Uncertificated Book-Entry Share surrendered or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have Tax either has been paid or are is not payableapplicable.
(d) After Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a), without any interest thereon.
(e) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of shares the Surviving Corporation of Siebel Stockthe Shares that were outstanding immediately prior to the Effective Time. IfFrom and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration, except as otherwise provided by applicable Law. Subject to the penultimate sentence of Section 2.3(g), if, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Paying Agent for transfer (or for any other reason) or transfer is sought for Book-Entry Shares, they such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth as provided in this Section 3.10Article II.
(ef) Any portion The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent; provided, that any investment of such cash shall in all events be in short-term obligations of the Siebel Merger Consideration United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made available in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the Exchange Agent pursuant deficiency in the amount of cash required to Section 3.10(afully satisfy such cash payment obligations. Any interest and other income resulting from such investments shall be payable to, and shall be the property of, Parent.
(g) At any time following the date that remains unclaimed by the holders of shares of Siebel Stock is six months after the Effective Time Time, Parent shall be returned entitled to Parent upon demand, and require the Paying Agent to deliver to it any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and funds (including any dividends and distributions interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares, in respect of and thereafter such shares without any interest thereon. Notwithstanding holders shall be entitled to look to Parent and the foregoing, Parent shall not be liable Surviving Corporation (subject to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or other similar laws) only as general unsecured creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificate or Book-Entry Shares. Any amounts remaining unclaimed by such holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Entity) Entity shall become, to the extent permitted by applicable lawLaw, the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(fh) No dividends If any Certificate shall have been lost, stolen or other distributions with respect destroyed, upon the making of an affidavit, in form and substance reasonably acceptable to Parent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Paying Agent, Parent Stock constituting part or the Surviving Corporation, the posting by such Person of the Siebel Merger Considerationa bond, and no cash payment in lieu of fractional shares such reasonable amount as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferredParent may direct, as indemnity against any claim that may be made against it or the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender Surviving Corporation with respect to such securities and (ii) at the appropriate payment dateCertificate, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parentwill pay, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in accordance with Section 251(g) respect of DGCLthe Shares formerly represented by such Certificate, as contemplated by this Article II.
Appears in 2 contracts
Sources: Merger Agreement (MKS Instruments Inc), Merger Agreement (Newport Corp)
Surrender and Payment. (a) Prior At the Effective Time the stock transfer books of Sagebrush shall be closed, and no transfer of any share of Sagebrush Common Stock theretofore outstanding shall thereafter be made. As soon as practicable after the Effective Time, each holder of Sagebrush Common Stock converted pursuant to Section 2.5(b), upon surrender, for cancellation, to an exchange agent designated by WSMP, subject to the Election Record Dateapproval of Sagebrush (such approval not to be withheld or delayed unreasonaly), Parent shall appoint an agent prior to the Merger (the “"Exchange Agent”) for the purpose "), of one or more certificates previously representing Sagebrush Common Stock, will be entitled to receive (i) mailing and receiving Election Forms and determiningcertificates representing Merger Consideration, as provided in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel StockSection 2.5(c), and (ii) exchanging a check for the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agentcash amount, if any, as neededprovided in Section 2.6, the applicable Siebel Merger Consideration to be issued or paid in each case in respect of the Certificates aggregate number of shares of Sagebrush Common Stock previously represented by the certificate or certificates surrendered and promptly canceled after receipt thereof by the Uncertificated SharesExchange Agent. Promptly As promptly as practicable after the Effective TimeClosing Date, Parent shall send, or WSMP shall cause the Exchange Agent to send, deliver or mail to each record holder shareholder of Siebel Stock at the Effective Time Sagebrush a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in surrendering, in exchange for Merger consideration, the certificates that immediately prior to the Effective Time represented shares of Sagebrush Common Stock. Upon the surrender of such exchange; providedcertificates, that any together with such letter of transmittal and instructions such other documents as may reasonably be requested, WSMP shall promptly cause the Merger Consideration to be sent to holders of Uncertificated Shares only issued and delivered to the extent determined necessary by Oracle and persons entitled therto. No dividend or other distribution payable following the Exchange Agent Closing with respect to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel WSMP Common Stock that have been converted into the right to receive the Siebel be recieved as Merger Consideration shall be entitled paid, and there shall be no right to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or vote such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)WSMP Common Stock, at Parent’s option, shall be in uncertificated book-entry form, unless a physical until the Sagebrush shareholder has tendered the certificate is requested by a holder of or certificates representing shares of Siebel Sagebrush Common Stock or is otherwise required under applicable law. Until so surrendered or transferredto be exchanged for Merger Consideration, as the case may beit being understood, each however, that such Certificate or Uncertificated Share tender when made shall represent after relate back to the Effective Time for all the purposes only the right of any rights to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent WSMP Common Stock constituting part distributable to holders of record after the Effective Time. No interest will be paid or acccrued on the Merger Consideration upon the surrender of the Siebel Merger Consideration, and no cash payment in lieu certificate or certificates representing shares of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered Sagebrush Common Stock or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all on dividends or other distributions with a record date after deferred as described in the Effective Time previously paid or payable on the date of such surrender with immediately preceding sentence. With respect to such securities and (ii) at any certificate for Sagebrush Common Stock that has been lost or destroyed, WSMP shall cause the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect Merger Consideration attributable to such securities.
(g) Any portion certificate to be paid upon receipt of evidence and indemnity reasonably satisfactory to it of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demandrepresented thereby.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Sagebrush Inc), Merger Agreement (WSMP Inc)
Surrender and Payment. (a) Prior At or prior to the Election Record DateClosing, Parent shall appoint an agent a United States bank or trust company or other independent financial institution in the United States (the “Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as exchange agent for the purpose of (i) mailing Merger and receiving Election Forms and determining, in accordance with this Article 3, to deliver the form of Siebel Merger Consideration to be received by each holder former stockholders of shares of Siebel Stock, the Company. The Company and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to enter into an Exchange Agent agreement with the Exchange Agent, as neededwhich agreement shall set forth the duties, the applicable Siebel Merger Consideration to be issued or paid in respect responsibilities and obligations of the Certificates and Exchange Agent consistent with the Uncertificated Sharesterms of this Agreement. Promptly after the Effective TimeTime on the Closing Date, Parent shall senddeposit (or cause to be deposited) with the Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Exchange Agent in accordance with this Agreement (Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration, Parent shall promptly deliver, or cause to be delivered, additional shares of Parent Common Stock to the Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to send, mail to each record holder of Siebel Stock at stockholder whose shares were converted into the Effective Time right to receive Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal and instructions (which transmittal, in customary form, that shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be effecteddeemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Book Entry Shares to the Exchange AgentAgent and (ii) instructions for use in such exchange; providedeffecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, that any such the form and substance of which letter of transmittal and instructions shall be sent as reasonably agreed to holders of Uncertificated Shares only by the Company and Parent and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) Closing. Upon receipt of an “agent’s message” by the Exchange Agent (in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe required pursuant to such instructions, the Siebel holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in respect connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the Siebel Stock represented by a Certificate issuance of any fractional shares or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock dividends or is otherwise required under applicable law. Until so surrendered or transferred, as distributions payable with respect to the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) . If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to of such payment exchange that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment exchange shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result by reason of such payment of the Merger Consideration to a Person other than the registered holder of such stockholder owning the Book Entry Share transferred or Certificate surrendered, or Uncertificated Share or shall establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are not payableinsufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) After At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of the shares of Siebel StockCompany Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Book Entry Shares are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration pursuant to this Article IV, in accordance with the procedures set forth in this Section 3.10except as otherwise provided by Law.
(e) Any portion of the Siebel Merger Consideration made available by Parent to Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by the holders of shares of Siebel Stock six months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent upon demand, and any such holder or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the Siebel their claim for Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of shares of Siebel Stock for any amounts paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (If any Certificate or such earlier dateBook Entry Share shall not have been surrendered or transferred, immediately respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity) shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable lawLaw, become the property of ParentParent or the Surviving Corporation, free and clear any stockholder of any claims such Certificate or interest Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of any Person previously entitled theretotheir claim for Merger Consideration in respect thereof.
(fg) No dividends If any Certificate shall have been lost, stolen or other distributions with respect destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent Stock constituting part of and the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to Exchange Agent) by the Person in whose name the securities of Parent have been registeredclaiming such certificate to be lost, (i) at the time of such surrender stolen or transferdestroyed, the amount of any cash payable Exchange Agent shall issue in lieu of fractional shares exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesthis Article IV.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank or trust company to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose payment of Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.06(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (such amounts being hereinafter referred to as the “Exchange Fund”). The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) mailing and receiving Election Forms and determiningdirect obligations of the United States of America, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging obligations for which the applicable Siebel full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.06(b) shall be promptly paid to Parent.
(b) Merger Consideration (A) for Subsidiary shall instruct the Disbursing Agent to mail promptly after the Effective Time, but in no event later than the fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates representing shares of Siebel Stock which immediately prior to the Effective Time represented Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (), and whose Shares were converted into the “Uncertificated Shares”). Parent shall make available right to the Exchange Agent, as needed, the applicable Siebel receive Merger Consideration pursuant to be issued or paid in respect Section 3.06(b), a form of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Disbursing Agent) and instructions for use in such exchange; providedeffecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation, that any together with such letter of transmittal duly executed and instructions shall such other documents as may be sent to holders of Uncertificated Shares only to reasonably required by the extent determined necessary by Oracle and Disbursing Agent, the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration such Certificate shall be entitled to receive, upon (i) surrender to receive in exchange therefor the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares that Certificate, less any required withholding of Parent Stock constituting part of such Siebel Merger Consideration (if any)Taxes, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each and such Certificate shall forthwith be cancelled. No interest will be paid or Uncertificated Share shall represent after accrued on the Effective Time for all purposes only cash payable upon the right to receive such Siebel Merger Considerationsurrender of the Certificates.
(c) If any portion of the Siebel Merger Consideration payment is to be paid made to a Person person other than the Person person in whose name the Certificate surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such of payment that (i) either such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result by reason of such the payment to a Person person other than the registered holder of such the Certificate or Uncertificated Share surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have tax has been paid or are is not payableapplicable.
(d) After Until surrendered in accordance with the provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the applicable Merger Consideration.
(e) At and after the Effective Time, there shall be no further registration of transfers of shares Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of Siebel Stockthe Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation for any reason, they such Certificates shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time the stock ledger of the Company shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10closed.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent, Parent upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At any time more than twelve months after the Effective Time, the Exchange Disbursing Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares upon demand of Parent Stock constituting deliver to it any funds which had been made available to the Oracle Merger Consideration. No separate certificates shall be issued Disbursing Agent and not disbursed in exchange for Oracle Stock Certificates (including all interest and other income received by the Disbursing Agent in accordance respect of all such funds). Thereafter, holders of Certificates shall look only to the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with Section 251(g) respect to any Merger Consideration that may be payable, without interest, upon due surrender of DGCLthe Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate for any Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
Surrender and Payment. (a) Prior At or prior to the Election Record DateClosing, Parent shall appoint an agent a United States bank or trust company or other independent financial institution in the United States (the “Paying and Exchange Agent”) that is reasonably acceptable to the Company to act, among other things, as paying agent and exchange agent for the purpose of (i) mailing Merger and receiving Election Forms and determining, in accordance with this Article 3, to deliver the form of Siebel Merger Consideration to be received by each holder former stockholders of shares of Siebel Stock, the Company. The Company and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, as neededwhich agreement shall set forth the duties, the applicable Siebel Merger Consideration to be issued or paid in respect responsibilities and obligations of the Certificates Paying and Exchange Agent consistent with the Uncertificated Sharesterms of this Agreement. Promptly after the Effective TimeTime on the Closing Date, Parent shall senddeposit (or cause to be deposited) with the Paying and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Paying and Exchange Agent in accordance with this Agreement (such cash and Parent Common Stock shall be referred to in this Agreement as the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including with respect to Company Common Stock held by stockholders who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the deficiency required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after the Effective Time), Parent shall cause the Paying and Exchange Agent to send, mail to each record holder of Siebel Stock at stockholder whose shares were converted into the Effective Time right to receive the Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal and instructions (which transmittal, in customary form, that shall specify that the delivery of such Certificates or transfer of such Book Entry Shares shall be effecteddeemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Book Entry Shares to the Paying and Exchange AgentAgent and (ii) instructions for use in such exchange; providedeffecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, that any such the form and substance of which letter of transmittal and instructions shall be sent as reasonably agreed to holders of Uncertificated Shares only by the Company and Parent and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent (in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Sharesbe required pursuant to such instructions, the Siebel holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in respect connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the Siebel Stock represented by a Certificate issuance of any fractional shares or Uncertificated Sharedividends or distributions payable with respect to Share Consideration. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Certificate or the transferred Uncertificated Share in exchange therefor is registered, it shall be a condition to of such payment exchange that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment exchange shall pay to the Paying and Exchange Agent any transfer or other taxes Taxes required as a result by reason of such payment of the Merger Consideration to a Person other than the registered holder of such stockholder owning the Book Entry Share transferred or Certificate surrendered, or Uncertificated Share or shall establish to the reasonable satisfaction of the Paying and Exchange Agent that such taxes have Tax has been paid or is not applicable.
(c) The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are not payableinsufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) After At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of the shares of Siebel StockCompany Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Book Entry Shares are presented to the Siebel Surviving CorporationCorporation or the Paying and Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration pursuant to this Article IV, in accordance with the procedures set forth in this Section 3.10except as otherwise provided by Law.
(e) Any portion of the Siebel Merger Consideration made available by Parent to Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by the holders of shares of Siebel Stock six months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent upon demand, and any such holder or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the Siebel their claim for Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying and Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of shares of Siebel Stock for any amounts paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (If any Certificate or such earlier dateBook Entry Share shall not have been surrendered or transferred, immediately respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity) shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by applicable lawLaw, become the property of ParentParent or the Surviving Corporation, free and clear any stockholder of any claims such Certificate or interest Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of any Person previously entitled theretotheir claim for Merger Consideration in respect thereof.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock constituting part of with a record date after the Siebel Merger ConsiderationEffective Time, and no cash payment in lieu of fractional shares as provided in pursuant to Section 3.11, shall 4.1(d) will be paid to the holder holders of any unsurrendered Certificates not surrendered or Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of any Uncertificated Shares not transferred until record of such Certificates or Uncertificated Book Entry Shares are surrendered shall surrender such Certificates or transferredBook Entry Shares. Subject to applicable Law, as following surrender of any such Certificates or Book Entry Shares, the case may be, as provided in this Section. Following such surrender or transfer, there Paying and Exchange Agent shall be paiddeliver to the holders thereof, without interest, to the Person in whose name the securities of Parent have been registered, interest (i) at the time of promptly after such surrender or transfersurrender, the amount of any cash Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 4.1(d) and the amount of all any such dividends or other distributions with a record date after the Effective Time previously and theretofore paid or payable on the date of such surrender with respect to such securities Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to such surrender or transfer payable with respect to such securitiesParent Common Stock.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably satisfactory to the Company (the “Exchange Paying Agent”) for the purpose of paying the Merger Consideration to the holders of Company Common Stock and shall enter into a Paying Agent Agreement with the Paying Agent. At or prior to the Effective Time, Parent shall deposit, or cause Merger Subsidiary to deposit, with the Paying Agent, for the benefit (ifrom and after the Effective Time) mailing and receiving Election Forms and determiningof the holders of shares of Company Common Stock, for payment in accordance with this Article 3Section 2.03 through the Paying Agent, cash sufficient to pay the form of Siebel aggregate Merger Consideration pursuant to Section 2.02. All cash deposited with the Paying Agent pursuant to this Section 2.03(a) shall herewith be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (referred to as the “CertificatesPayment Fund”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective TimeTime (and in any event within two Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Paying Agent to send, to each record Person who was, immediately prior to the Effective Time, a holder of Siebel record of shares of Company Common Stock at entitled to receive payment of the Effective Time Merger Consideration pursuant to Section 2.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebypayment.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent Paying Agent, Parent and the Surviving Corporation that such taxes have tax has been paid or are is not payable.
(d) After The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Paying Agent for any reason, they shall be canceled and exchanged for converted into the applicable Siebel right to receive only the Merger ConsiderationConsideration to the extent provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a2.03(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months after the Effective Time shall be returned delivered to Parent upon demandor otherwise on the instruction of Parent, and any such holder who has not exchanged received payment of the Merger Consideration for such converted shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Razor Holdco Inc.), Merger Agreement (Thermadyne Holdings Corp /De)
Surrender and Payment. (a) Prior to the Election Record Date, Parent shall appoint an agent (the “"Exchange Agent”") for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (Shares for the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall cause Merger Co. to make available to the Exchange Agent, as neededimmediately prior to the Effective Time, the applicable Siebel Merger Consideration to be issued exchanged or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent The Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock Shares, at the Effective Time same time that the PPM is sent or given to such holders, (i) a letter of transmittal and instructions for use in such exchange (which shall be in form and substance reasonably satisfactory to the Company and shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and (ii) instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebysurrender of the Certificates in exchange for the Merger Consideration.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates representing such Shares, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, shall be entitled to receive the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Sharesuch Shares. The shares of Parent Stock constituting part holder of such Siebel Merger Consideration (if any)Certificate, at Parent’s optionupon its exchange for Parent Common Shares, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.03(c). Certificates surrendered shall forthwith be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawcancelled following the Effective Time. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share Certificate, following the Effective Time, shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made after the Effective Time with respect to Parent Stock constituting part of Common Shares with a record date after the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Effective Time shall be paid to the holder of any Certificates not surrendered or unsurrendered Certificate with respect to the Parent Common Shares such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.03. Subject to applicable law, following surrender of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transferCertificate, there shall be paidpaid to the record holder of the Certificates representing whole Parent Common Shares issued in exchange therefor, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment datesurrender, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable theretofore paid with respect to such securitieswhole Parent Common Shares.
(gd) Any portion of If any Certificate for Parent Common Shares is to be issued in a name other than that in which the Siebel Merger Consideration made available Certificate surrendered in exchange therefor is registered, it shall be a condition to the issuance therefor that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall have paid to the Exchange Agent pursuant to Section 3.10(a) any transfer or Section 3.11 to pay other taxes required as a result of the issuance of a Certificate for shares Parent Common Shares in any name other than that of Siebel Stock for which appraisal rights have been perfected shall be returned to Parentthe registered holder of such Shares, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior or establish to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares satisfaction of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares that such tax has been paid or is not payable. For purposes of Oracle Stock (excluding this Agreement, "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLother entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 2 contracts
Sources: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Itc Deltacom Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an Continental Stock Transfer & Trust Company as the exchange agent (or such other nationally recognized exchange agent agreed to between the parties) (the “Exchange Agent”) to act as agent for the Company’s stockholders who shall become entitled to receive funds pursuant to this Agreement, including as agent for the purpose of (i) mailing and receiving Election Forms and determiningexchanging for the Per Share Merger Consideration, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated ;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Siebel Stock Company Common Stock). At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent the aggregate Per Share Merger Consideration (the “Uncertificated SharesPayment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the aggregate Per Share Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and following any losses Parent shall make available promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of twelve (12) months after the Effective Date or the full payment of the aggregate Per Share Merger Consideration. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, as needed, in connection with the applicable Siebel exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharessuch shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent) Agent for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby).
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Per Share Merger Consideration shall be entitled to receivereceive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part Company Common Stock, and, in each case, delivery to the Exchange Agent of such Siebel Merger Consideration (if any), at Parent’s option, shall other documents as may reasonably be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawthe Exchange Agent. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Per Share Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Per Share Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Per Share Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Per Share Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Siebel Per Share Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of ParentParent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent VStock Transfer, LLC (the “Exchange Paying Agent”) to act as paying agent in connection with the consideration to be paid to the Company Securityholders pursuant to a paying agent agreement among Parent, Representative and Paying Agent in the form attached hereto as Exhibit B (the “Paying Agent Agreement”). All of Paying Agent’s fees and expenses shall be borne by Parent.
(b) As soon as practicable following the date hereof, Company shall, or shall cause the Paying Agent to, send a notice, Letter of Transmittal in the form attached hereto as Exhibit C (the “Letter of Transmittal”) and acknowledgements of cancellation to each Company Securityholder advising such holder of the Mergers and the procedure for surrendering to the Paying Agent such holder’s certificate(s) representing Company Stock or Convertible Debt (collectively, “Exchange Documentation”) in exchange for the purpose payment of such portion of the Aggregate Merger Consideration to which the Company Securityholders are entitled pursuant to Section 1.3. Each Company Securityholder, upon proper surrender of Exchange Documentation to the Paying Agent in accordance with the instructions in such notice, shall be entitled to receive, in exchange therefor, the payments required by Section 1.3. Until properly surrendered, such Exchange Documentation shall be deemed for all purposes to evidence only the right to receive the payments required by Section 1.3. All Parent Shares will be book entry only.
(c) Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Company Securityholders and Creditors with Unpaid Contractual Obligations, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and shall have no liability to any party to this Agreement or to any Company Securityholder, Company shareholder or Company Creditor for any payment not reflected on the Distribution Schedule. The Distribution Schedule shall include:
(i) mailing the name and receiving Election Forms address (as listed in the corporate record books of Company);
(ii) the allocation of the Aggregate Merger Consideration among the Creditors and determiningCompany Securityholders, determined in accordance with this Article 3the Company Charter as in effect as of immediately prior to the Effective Time, including the form allocation of Siebel any cash consideration and any Parent Shares issuable to each Company Securityholder and the allocation of the Closing Merger Consideration payable to be received by each holder of shares of Siebel StockCreditor and Company Securityholder.
(d) At the Closing, and (ii) exchanging Parent shall deposit the applicable Siebel Closing Merger Consideration (A) for certificates representing shares of Siebel Stock (with the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Paying Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall sendcause the Paying Agent to deliver to each Company Securityholder who has completed and returned the requisite Exchange Documentation to the Paying Agent, together with Company Stock Certificates representing outstanding shares of Company Stock or original copies of the Company’s Convertible Debt notes (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond) and any Company Creditors, the Closing Merger Consideration payable to such Company Securityholder or Creditor, and in any event within three (3) Business Days after return of such documentation to the Paying Agent; provided, however, that Parent shall cause the Exchange Paying Agent to send, deliver the Closing Merger Consideration on the Closing Date to each record holder Company Securityholder who at least three (3) Business Days prior to the Closing has completed and returned the requisite Exchange Documentation to the Paying Agent, together with Company Stock Certificates representing outstanding shares of Siebel Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or original copies of the Certificates Company’s Convertible Debt notes (or transfer an affidavit of the Uncertificated Shares lost instrument in form reasonably acceptable to the Exchange AgentParent but without any bond) for use in such exchange; provided, that and any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyCompany Creditors.
(be) Each holder Parent shall not be required to pay any amount of shares of Siebel Stock that have been converted into the right to receive the Siebel Closing Merger Consideration or any portion of any Earnout Payment to any Company Securityholder until receipt by the Paying Agent from such Company Securityholder of properly completed and executed Letters of Transmittal and the applicable Company Stock Certificate or original Convertible Debt note (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond (except as may be required by the Paying Agent)).
(f) The Parent Shares pursuant to the terms of this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and/or Regulation D promulgated under the Securities Act and may not be re-offered or resold other than in conformity with the registration requirements of the Securities Act and such other applicable rules and regulations or pursuant to an exemption therefrom. Until the resale by the Company Securityholders or Creditors of their Parent Shares has become registered under the Securities Act, or otherwise transferable pursuant to an exemption from such registration otherwise required thereunder, the Parent Shares issued to the Company Securityholders or Creditors shall be entitled characterized as “restricted securities” under the Securities Act and, if certificated, shall bear the following legend (or if held in book entry form, will be noted with a similar restriction): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT.” Parent agrees to receive, cooperate in a timely manner with the Company Securityholders or Creditors holding registrable securities to remove any restrictive legends or similar transfer instructions from the registrable Securities upon the registration of the registrable securities or in the event that the registrable securities are otherwise transferable pursuant to an exemption from registration otherwise required thereunder.
(ig) surrender At such times and subject to the Exchange terms and conditions set forth in Annex 1 hereto, as additional consideration for the Merger, and subject to the setoff rights of Parent Indemnitees pursuant to Article 7 hereof, after the Effective Time, Parent shall deliver the Earnout Payments to Paying Agent to distribute to the Company Securityholders and Creditors in accordance with each the Distribution Allocation. Any such Earnout Payments, including, without limitation, the Accelerated Payment, shall be payable in cash and/or Parent Shares (valued at the average closing price of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent Parent Shares as reported on OTC Markets (or such other evidencenational or foreign securities exchange on which Parent’s shares are listed) for the ten (10) trading days immediately prior to the date of issuance), if any, pursuant to an allocation of transfer as the Exchange Agent may reasonably request) 60% in the case of a book-entry transfer of Uncertificated cash and 40% in Parent Shares, unless otherwise agreed by Parent and the Siebel Merger Consideration Representative in respect of the Siebel writing.
(h) Until surrendered in accordance with this Agreement, each Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share Convertible Debt note shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationpayment as provided in this Agreement.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and At any time following the day that is twelve (ii12) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, months after the Effective Time, Certificates or Uncertificated the Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any earnings received with respect thereto) and Parent Shares are presented that had been made available to the Siebel Surviving Corporation, they Paying Agent with respect to the Closing Merger Consideration and that have not been disbursed to Company Securityholders and thereafter such Company Securityholders shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent entitled to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to the Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable (subject to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityLaws) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions only as general creditors thereof with respect to Parent Stock constituting part the applicable portion of the Siebel Closing Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid Consideration payable to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paidthem, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesinterest thereon.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to the Company as paying agent (the “Exchange Paying Agent”) for the purpose holders of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, Shares to receive the form of Siebel aggregate Merger Consideration to be received by each holder which the holders of shares of Siebel Stocksuch Shares shall become entitled pursuant to, and in accordance with, Section 2.5. Promptly after the Effective Time (ii) exchanging but in no event later than three Business Days following the applicable Siebel Effective Time), Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration (A) for certificates representing shares of Siebel Stock payable pursuant to Section 2.5 (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated SharesPayment Fund”). Parent The Payment Fund shall make available not be used for any purpose other than to pay the Exchange Agent, as needed, the applicable Siebel aggregate Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Merger.
(b) Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Paying Agent to send, to each record holder of Siebel Stock at record of Shares as of the Effective Time Time, in each case whose Shares were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer to the Paying Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that . Surrender of any such letter of transmittal and instructions Book-Entry Shares shall be sent effected in accordance with the Paying Agent’s customary procedures with respect to holders of Uncertificated Shares only to the extent determined necessary securities represented by Oracle and the Exchange Agent to effect the transactions contemplated herebybook entry.
(bc) Each holder of shares of Siebel Stock Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Paying Agent of a CertificateCertificate or Book-Entry Share (or affidavits in lieu thereof in accordance with Section 3.2), together with a properly completed letter of transmittal, will be entitled to receive in exchange therefor the Merger Consideration for each Share formerly evidenced by such Certificates or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Shareand such Certificates and Book-Entry Shares shall then be canceled. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, No interest shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock paid or is otherwise required under applicable lawaccrued on any Merger Consideration. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Book-Entry Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger ConsiderationConsideration as contemplated by Section 2.5.
(cd) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such the payment thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment delivery of the Merger Consideration shall either (A) pay to the Exchange Paying Agent any stock transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or (B) establish to the satisfaction of the Exchange Paying Agent that such taxes Tax has been paid or is not payable. None of Parent, Merger Sub and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.1(d) under any circumstance. Payment of the aggregate Merger Consideration, as applicable, with respect to Book-Entry Shares shall be made only to the Person in whose name such Book-Entry Shares are registered.
(e) All Merger Consideration paid upon the surrender of and in exchange for Shares in accordance with the terms hereof shall be deemed to have been paid or are not payable.
(d) After in full satisfaction of all rights pertaining to such Shares. From and after the Effective Time, there shall be no further registration of transfers of shares Shares made on the stock transfer books of Siebel Stockthe Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Paying Agent, the Surviving CorporationCorporation or Parent, they shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for by, and in accordance with the procedures set forth in in, Article II and this Section 3.10Article III.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a3.1(a) that remains unclaimed by the holders of shares of Siebel Stock six months Shares one year after the Effective Time shall be returned to Parent Parent, or transferred as otherwise directed by Parent, upon demand, and any such holder who has not exchanged shares of Siebel Stock such holder’s Shares for the Siebel Merger Consideration in accordance with this Section 3.10 3.1 prior to that time shall thereafter look only to Parent for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall not be liable to any holder of shares of Siebel Stock Shares for any amounts paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Stock Shares two years after the Effective Time (Time, or such earlier date, immediately prior to time at which such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Entity shall become, to the extent permitted by applicable lawLaw, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(fg) No dividends The Paying Agent shall invest any cash deposited by or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities on behalf of Parent have been registeredpursuant to Section 3.1(a) as directed by Parent; provided, however, that (i) in no event shall any losses on such investments affect the cash payable to former holders of Shares pursuant to this Article III, and (ii) such investments shall be in (1) obligations of or guaranteed by the United States of America, (2) commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (3) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (4) money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such surrender or transfercase, no such investment instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be paid promptly to Parent. To the amount of extent there are any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender losses with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion any investments of the Siebel funds deposited with the Paying Agent, or the funds shall for any other reason, including the Dissenting Shares losing their status as such, not be sufficient for the Paying Agent to make prompt payment of the Merger Consideration Consideration, then upon demand by the Paying Agent, Parent shall promptly reimburse any such loss or otherwise provide additional funds (by wire transfer of immediately available funds) so as to ensure that the funds are at all times maintained at a level sufficient for the Paying Agent to make all payments contemplated by this Agreement to be made available to by the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demandPaying Agent.
(h) Certificates representing shares The payment of Oracle Stock immediately prior any transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees incurred by a holder of Shares in connection with the Merger, as well as the filing of any related Tax Returns and other documentation with respect to the Initial Effective Time shallsuch Taxes and fees, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) the responsibility solely of DGCLsuch holder.
Appears in 2 contracts
Sources: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Merger Sub shall appoint an a bank or trust company, that has been approved in advance by the Company (which approval shall not be unreasonably withheld, delayed or conditioned), to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose payment of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3Merger Consideration upon surrender of certificates representing the shares of Company Common Stock. Prior to the Effective Time, the form of Siebel Company and Merger Consideration to be received by each holder of shares of Siebel StockSub will enter into a disbursing agent agreement with the Disbursing Agent and, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) at or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after essentially simultaneously with the Effective Time, Parent shall sendcause Merger Sub to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 2.06(b) to and for the benefit of holders of shares of Company Common Stock (such amounts being hereinafter referred to as the “Exchange Fund”), with such cash to be held in trust by the Disbursing Agent, pursuant to the terms of the disbursing agent agreement referenced above, for the benefit of such holders of such shares. The Disbursing Agent shall invest the Exchange Fund as directed by Merger Sub; provided that any such investments shall be limited to (i) direct short-term obligations of the United States of America, or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest; provided, further, that no loss thereon or thereof shall affect the amounts payable to holders of shares of Company Common Stock pursuant to Section 2.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.06(b) shall be promptly paid to Parent. Merger Sub shall, and Parent shall cause Merger Sub to, promptly replenish the Exchange Fund to the extent of any investment losses.
(b) As soon as reasonably practicable after the Effective Time, but in any event no later than the third (3rd) Business Day thereafter, the Disbursing Agent to send, shall mail to each Person who was a record holder as of Siebel Stock at the Effective Time of shares of Company Common Stock which were converted into the right to receive Merger Consideration pursuant to Section 2.06(b), a form of letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the outstanding certificate(s) which immediately prior to the Effective Time represented shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentDisbursing Agent and, in the case of non-certificated shares represented by book-entry which immediately prior to the Effective Time represented shares of Company Common Stock (the “Book-Entry Shares”), delivery shall be effected only after complying with reasonable delivery procedures established by the Disbursing Agent and reasonably acceptable to the Company, and shall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in such exchange; providedeffecting the surrender of the Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation or compliance with the reasonable procedures established by the Disbursing Agent for delivery of Book-Entry Shares, that any together with such letter of transmittal duly executed and instructions shall such other documents as may be sent to holders of Uncertificated Shares only to reasonably required by the extent determined necessary by Oracle and Disbursing Agent, the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration such Certificate or Book-Entry Shares shall be entitled to receive, upon (i) surrender receive in exchange therefor a check in an amount equal to the Exchange Agent product of a Certificate, together with a properly completed letter (x) the number of transmittal, or (ii) receipt shares of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate such holder’s properly surrendered Certificates or Uncertificated Share. The shares Book-Entry Shares multiplied by (y) the Merger Consideration, less any required withholding of Parent Stock constituting part of such Siebel Merger Consideration (if any)Taxes, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each and such Certificate and Book-Entry Shares shall forthwith be cancelled. No interest will be paid or Uncertificated Share shall represent after accrued on the Effective Time for all purposes only cash payable upon the right to receive such Siebel Merger Considerationsurrender of the Certificates or Book-Entry Shares.
(c) If any portion of the Siebel Merger Consideration payment is to be paid made to a Person other than the Person in whose name the Certificate surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such of payment that (i) either such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result by reason of such the payment to a Person other than the registered holder of such the Certificate or Uncertificated Share surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have tax has been paid or are is not payableapplicable.
(d) After Until surrendered in accordance with the provisions of this Section 2.07, each Certificate or Book-Entry Share (other than Certificates or Book-Entry Shares representing shares of Company Common Stock owned by Parent, Merger Sub or any other wholly-owned Subsidiary of Parent, shares of Company Common Stock held by the Company or any wholly-owned Subsidiary of the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the applicable Merger Consideration, without interest.
(e) At and after the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock, except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock previously represented by such Certificates or Book-Entry Shares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving CorporationCorporation for any reason, they such Certificates or Book-Entry Shares shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth cash as provided in this Section 3.10Article II. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be closed.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Company Common Stock for which appraisal rights have been perfected shall be returned to Parent, Parent upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At any time more than six (6) months after the Effective Time, the Exchange Disbursing Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares upon demand of Parent Stock constituting deliver to it any funds which had been made available to the Oracle Merger Consideration. No separate certificates shall be issued Disbursing Agent and not disbursed in exchange for Oracle Certificates and Book-Entry Shares (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, any former holders of shares of Company Common Stock shall look only to the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or Book-Entry Shares held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any Governmental Entity, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book-Entry Share for any Merger Consideration delivered in accordance with Section 251(g) respect of DGCLsuch Certificate or Book-Entry Share to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 2 contracts
Sources: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank or trust company reasonably acceptable to the Company to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose of receiving and exchanging the payment of Merger Consideration for the benefit of the Company stockholders upon surrender of certificates representing the Shares. The Disbursing Agent shall also act as the agent for the Company stockholders for the purpose of holding the certificates representing the Shares and shall obtain no rights or interests in the Shares represented by such certificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.6(b) to holders of Shares (such amounts being hereinafter referred to as the “Exchange Fund”). For purposes of determining the aggregate amount to be so deposited, Parent and Merger Subsidiary shall assume that no stockholders of the Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) mailing and receiving Election Forms and determiningdirect obligations of the United States of America, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging obligations for which the applicable Siebel full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation or (iv) a combination of any of the foregoing; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.6(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.6(b) shall be promptly paid to Parent. If for any reason (including losses) such funds are inadequate to pay all amounts to which holders of Shares shall be entitled hereunder, Parent shall promptly deposit or cause to be deposited additional cash with the Disbursing Agent sufficient to make all payments required under this Agreement, and Parent and the Merger Consideration Subsidiary shall in any event be liable for payment thereof. The Exchange Fund shall not be used for any other purpose. Parent shall bear and pay all charges and expenses, including those of the Disbursing Agent, incurred in connection with the exchange of Shares and the Exchange Fund.
(Ab) for Parent shall cause the Disbursing Agent to mail promptly after the Effective Time, but in no event later than the third (3rd) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates representing shares of Siebel Stock which immediately prior to the Effective Time represented Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (), and whose Shares were converted into the “Uncertificated Shares”). Parent shall make available right to the Exchange Agent, as needed, the applicable Siebel receive Merger Consideration pursuant to be issued or paid in respect Section 3.6(b), (i) a form of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Disbursing Agent) and (ii) instructions for use in such exchange; providedeffecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation, that any together with such letter of transmittal duly executed and instructions shall such other documents as may be sent to holders of Uncertificated Shares only to reasonably required by the extent determined necessary by Oracle and Disbursing Agent, the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration such Certificate shall be entitled to receive, upon (i) surrender to receive in exchange therefor the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of that Certificate, less any required withholding of Taxes, to be mailed within five (5) Business Days of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part receipt of such Siebel Merger Consideration (if any)Certificate and executed letter of transmittal by the Distributing Agent, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each and such Certificate shall forthwith be canceled. No interest will be paid or Uncertificated Share shall represent after accrued on the Effective Time for all purposes only cash payable upon the right to receive such Siebel Merger Considerationsurrender of the Certificates.
(c) If payment of any portion of the Siebel Merger Consideration is to be paid made to a Person other than the Person in whose name the Certificate surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to of payment of such payment Merger Consideration that (i) either such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result by reason of such the payment to a Person other than the registered holder of such the Certificate or Uncertificated Share surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have Tax has been paid or are is not payableapplicable.
(d) After Until surrendered in accordance with the provisions of this Section 3.7, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the applicable Merger Consideration for each Share formerly represented by such Certificate.
(e) At and after the Effective Time, there shall be no further registration of transfers of shares Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of Siebel Stockthe Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation for any reason, they such Certificates shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10closed.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At any time more than eighteen (18) months after the Effective Time, the Exchange Disbursing Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares upon demand of Parent Stock constituting deliver to it any funds which had been made available to the Oracle Merger Consideration. No separate certificates shall be issued Disbursing Agent and not disbursed in exchange for Oracle Stock Certificates (including all interest and other income received by the Disbursing Agent in accordance respect of all such funds). Thereafter, holders of Certificates shall look only to the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with Section 251(g) respect to any Merger Consideration that may be payable, without interest, upon due surrender of DGCLthe Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate for any Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 2 contracts
Sources: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
Surrender and Payment. (a) Prior to the Election Record Closing Date, Parent Parent, at its sole expense, shall appoint an Computershare Trust Company N.A. or such other exchange agent as reasonably acceptable to the Company and Parent (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging Book-Entry Shares. At the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Closing, Parent shall make available deposit, or shall cause to be deposited, with the Exchange Agent, as neededfor the benefit of the holders of Common Shares, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the Common Shares represented by the Certificates and the Uncertificated Book-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly (and in any case, within five (5) Business Days) to deposit, or cause to be deposited, in trust additional cash with the Exchange Agent sufficient to make all remaining payments required to be made under this Section 3.2 and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. Any net profit resulting from, or interest or income produced by, investments of the Payment Fund by the Exchange Agent shall be payable to the Surviving Corporation or Parent, and any amounts in excess of the amounts payable pursuant to Section 3.1 shall be promptly returned to the Surviving Corporation or Parent, in each case as directed by Parent. The Surviving Corporation shall pay all charges and expenses of the Exchange Agent incurred in connection with the exchange of Common Shares for the Merger Consideration. The Payment Fund shall not be used for any purpose other than to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares. Promptly after the Effective TimeTime (and in any case, Parent shall sendwithin five (5) Business Days), or the Surviving Corporation shall cause the Exchange Agent to send, send to each record holder of Siebel Stock Common Shares at the Effective Time Time, a letter of transmittal in a customary form to be mutually agreed to by the Company and Parent (the “Letter of Transmittal”) and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in effecting the surrender of such exchange; provided, that any such letter Certificates or transfer of transmittal and instructions shall be sent the Book-Entry Shares to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect in exchange for payment of the transactions contemplated herebyMerger Consideration.
(b) Each holder of shares of Siebel Stock Common Shares that have been converted into the right to receive the Siebel Merger Consideration shall shall, subject to Section 3.2(f), be entitled to receive, receive the Merger Consideration in respect of the Common Shares represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed letter and validly executed Letter of transmittalTransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) request in the case of a bookBook-entry transfer of Uncertificated Entry Shares, . After the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until Effective Time and until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Book-Entry Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Book-Entry Share or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Company Common Stock formerly represented by such Certificate or Book-Entry Shares. The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and thereafter there shall be no further registration of transfers of shares Company Common Stock on the stock transfer books of Siebel Stockthe Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, Consideration in accordance with the procedures set forth in this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(hf) Any portion of the Payment Fund which remains undistributed to the holders of Company Common Stock for six (6) months after the Effective Time shall be delivered to the Surviving Corporation upon demand, and any holders of Company Common Stock who have not theretofore complied with this Article III shall (subject to the remainder of this Section 3.2(f)) thereafter look only to the Surviving Corporation for the Merger Consideration, without any interest thereon but subject to any applicable withholdings. If any Certificates representing shares of Oracle Stock or Book-Entry Shares shall not have been exchanged prior to two years after the Effective Time (or immediately prior to such earlier date on which the Initial related Merger Consideration would otherwise escheat to or become the property of any Governmental Authority) any such Merger Consideration in respect thereof shall, to the extent permitted by Applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. None of Parent, the Company or the Surviving Corporation shall be liable to any holder of Company Common Stock for any cash from the Payment Fund delivered to a public official pursuant to any abandoned property, escheat or similar Applicable Law.
(g) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) paid to the holder of DGCLany unsurrendered Certificates.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Electro Rent Corp), Merger Agreement (Electro Rent Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares that immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). On and after the Effective Time, Parent shall make available deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, as needed, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this ARTICLE III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10ARTICLE III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Stock Shares six (6) months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.02 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto. If any Certificates or Book-Entry Shares are not delivered, surrendered or transferred, as applicable, in accordance with this Section 3.02 prior to the date on which any amounts payable under this ARTICLE III would otherwise escheat to or become the property of any Governmental Entity, any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Paying Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, paying the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, as provided in Section 1.2(a) and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”Section 1.2(b). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, deposit with and make available to (or shall cause to be deposited with and made available to) the Paying Agent cash sufficient to pay the full Closing Cash Consideration in respect of shares of Company Common Stock and Company Preferred Stock, but not any Closing Cash Consideration in respect of any Excluded Shares and Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, and the Company RSU Cash Consideration (such amount deposited in cash, the “Exchange Fund”). If, for any reason (including losses) the Exchange Fund is inadequate to pay the Closing Cash Consideration in respect of the shares of Company Common Stock and Company Preferred Stock (excluding any Closing Cash Consideration in respect of any Excluded Shares and Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, or the Company RSU Cash Consideration), Parent shall take all steps necessary to promptly deposit with and make available to the Paying Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Paying Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be payable to Parent or the Surviving Corporation, as Parent directs.
(b) Promptly after the Effective Time (but in no event later than two Business Days after the Effective Time), Parent shall cause the Paying Agent to send, send to each record holder of Siebel record of a certificate (the “Certificate”) which immediately prior to the Effective Time represented shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Sub or any Subsidiary of the Company or Parent), (i) a notice advising such holder of the effectiveness of the Merger, (ii) a letter of transmittal transmittal, in form and substance reasonably acceptable to the Company, and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares shares of Company Common Stock to the Exchange Paying Agent) and (iii) instructions for use effecting the surrender of the Certificate in such exchange; providedexchange for payment of the Merger Consideration.
(c) With respect to shares of Company Common Stock held in book-entry form (“Book-Entry Shares”), that any such letter of transmittal the Company and instructions Parent shall be sent cooperate to, and Parent shall cause the Paying Agent to, (i) deliver to DTC or its nominees, or to holders of Uncertificated Shares only Book-Entry Shares, in each case to the extent determined necessary applicable or required, any notice with respect to the effectiveness of the Merger and any instructions for surrendering Book-Entry Shares and (ii) establish procedures with the Paying Agent and DTC to ensure that the Paying Agent will transmit to DTC or its nominees as soon as practicable after the Effective Time, upon the surrender of shares of Company Common Stock held of record by Oracle and DTC or its nominees in accordance with DTC’s customary surrender procedures, the Exchange Agent to effect the transactions contemplated herebyMerger Consideration payable for each such Book-Entry Share.
(bd) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) Upon surrender to the Exchange Agent of a Certificate, Certificate for cancelation (together with a properly completed the applicable letter of transmittal, duly executed and properly completed) to, or (ii) upon receipt of an “agent’s message” by the Exchange Agent in customary form (or such other evidenceevidence of transfer, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case respect of a bookBook-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferredEntry Share by, as the case may be, each the Paying Agent or such other agent or agents as may be appointed by P▇▇▇▇▇, the holder of such Certificate or Uncertificated Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or Book-Entry Share, and the Certificate or Book-Entry Share so surrendered shall be cancelled.
(e) Notwithstanding anything to the contrary contained herein, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the CVR Agreement and no portion of the Merger Consideration relating to the CVRs will be paid unless and until it is required to be paid pursuant to the CVR Agreement. Until the Merger Consideration in respect of a given share of Company Common Stock has been paid, such share of Company Common Stock shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of shares of Company Common Stock.
(cf) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the a transferred Uncertificated Share share of Company Common Stock is registered, it shall be a condition to such payment that (i) either such Certificate share of Company Common Stock shall be properly endorsed or shall be otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Paying Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share share of Company Common Stock or establish to the satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(dg) After Upon the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Siebel Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares shares of Company Common Stock are presented to the Siebel Surviving CorporationCorporation or the Paying Agent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
(eh) Any portion of the Siebel Merger Closing Cash Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a1.3(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after deposit with the Rights Agent, in each case shall be returned to Parent upon demandParent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 1.3 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Paying Agent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(fi) No dividends or other distributions The agreement with respect to the Paying Agent shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent Stock constituting part of or, after the Siebel Merger ConsiderationEffective Time, and no cash payment in lieu of fractional shares as the Surviving Corporation; provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, that (i) no such investment (including any losses thereon) shall relieve Parent or the Paying Agent from making the payments required by this Article I, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America or guaranteed by the United States of America, in commercial paper obligations rated P-1 or A-1 or better by M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing. Any interest or income produced by such surrender investments will be payable to the Surviving Corporation or transferParent, as directed by P▇▇▇▇▇. To the extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Paying Agent to promptly pay the cash amounts contemplated by Section 1.2; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Paying Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the amount of any cash payable in lieu of fractional shares the Exchange Fund so as to which such Person ensure that the Exchange Fund is entitled pursuant at all times fully available for distribution and maintained at a level sufficient for the Paying Agent to make the payments contemplated by Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities1.2.
(gj) Any portion of the Siebel Merger Closing Cash Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Acquirer shall appoint an exchange agent reasonably acceptable to the Target (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Per Share Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Target Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). Parent On and after the Effective Time, Acquirer shall make available to deposit with the Exchange Agent, as needed, sufficient shares of Acquirer Common Stock to pay the applicable Siebel aggregate Per Share Merger Consideration to be issued or paid that is payable in respect of all of the shares of Target Common Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Acquirer shall take all steps necessary to promptly to deposit in trust additional shares of Acquirer Common Stock with the Exchange Agent sufficient to make all payments required under this Agreement, and Acquirer and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Acquirer shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Target Common Stock for the Per Share Merger Consideration. Promptly after the Effective Time, Parent Acquirer shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Target Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Target Common Stock that have been converted into the right to receive the Siebel Per Share Merger Consideration shall be entitled to receive, receive the Per Share Merger Consideration in respect of the Target Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 2.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Per Share Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Per Share Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Per Share Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Target Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockTarget Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Per Share Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article II.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Stock Shares six (6) months after the Effective Time shall be returned to Parent Acquirer, upon demand, and any such holder who has not exchanged shares of Siebel Target Common Stock or Target Preferred Stock for the Siebel Per Share Merger Consideration in accordance with this Section 3.10 2.02 prior to that time shall thereafter look only to Parent Acquirer for payment of the Siebel Per Share Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent Acquirer shall not be liable to any holder of shares of Siebel Target Common Stock or Target Preferred Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Target Common Stock or Target Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Acquirer free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to ParentAcquirer, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Vapor Corp.), Merger Agreement (Vaporin, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an The Bank of New York or such other exchange agent reasonably acceptable to the Company (the “"Exchange Agent”") for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging Certificates for the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Consideration. Parent shall will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid delivered in respect of the Certificates and the Uncertificated Sharesshares of Company Common Stock. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in such exchange; provided, that any such letter effecting delivery of transmittal and instructions shall be sent to holders shares of Uncertificated Shares only Company Common Stock to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyAgent.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by will be entitled to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel shares of Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCertificate. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment the registration of the Merger Consideration that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable. For purposes of this Agreement, "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Honeywell Inc), Merger Agreement (Alliedsignal Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Stock (the “Certificates”) or (Bii) for uncertificated shares of Siebel Company Stock (the “Uncertificated Shares”). On the Business Day prior to the Closing, the Company shall deposit the Company Cash Deposit with the Exchange Agent (provided, that, if the Closing does not occur on such next Business Day, Parent will return, or cause to be returned, such Company Cash Deposit to the Company on the second Business Day after such deposit). The Company Cash Deposit shall be made solely out of cash on hand and shall be used solely for purposes of paying a portion of the Merger Consideration in accordance with this Article 2 and shall not be used to satisfy any other obligation of the Company or any of its Subsidiaries. Promptly after the Effective Time, Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Agent cash in an amount sufficient to pay all remaining aggregate Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares in excess of the Company Cash Deposit. Promptly As promptly as reasonably practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each Except as set forth in Sections 2.02(b) and (c), each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a2.03(a) that remains unclaimed by the holders of shares of Siebel Company Stock six months 180 days after the Effective Time shall be returned to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, neither Parent nor the Surviving Corporation shall not be liable to any holder of shares of Siebel Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (STG Ugp, LLC), Merger Agreement (MSC Software Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a bank or trust company (the “Exchange Agent”"EXCHANGE AGENT") for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (Company Shares for the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and Company Shares (the Uncertificated "EXCHANGE FUND"). For purposes of determining the Merger Consideration to be made available, Parent shall assume that no holder of Company Shares will perfect his right to appraisal of his Company Shares. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock Company Shares at the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Company Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the ). The Exchange Agent shall, pursuant to effect irrevocable instructions, make the transactions contemplated herebypayments provided in this Section 2.3. The Exchange Fund shall not be used for any other purpose, except as provided in this Agreement.
(b) Each holder of shares of Siebel Stock Company Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Company Shares, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such Company Shares and such other evidencedocuments as may be reasonably requested, if any, of transfer as will be entitled to receive the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCompany Shares. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent certificate shall, after the Effective Time Time, represent for all purposes purposes, only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person person other than the Person registered holder of the Company Shares represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it shall be a condition to such payment that (i) either such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person person other than the registered holder of such Certificate or Uncertificated Share Company Shares or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable. For purposes of this Agreement, "PERSON" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Platinum Technology International Inc), Merger Agreement (Computer Associates International Inc)
Surrender and Payment. (a) Pursuant to Section 3.2 of the Separation and Distribution Agreement, the Exchange Agent shall hold, for the account of the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed in the Distribution.
(b) Prior to the Election Record DateEffective Time, Parent shall appoint enter into an exchange agreement in customary form (the “Exchange Agent Agreement”) with the transfer agent of Parent to act as agent (the “Exchange Agent”) for the purpose payment of (i) mailing and receiving Election Forms and determiningthe Merger Consideration Shares. Substantially concurrently with the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the SpinCo Holders, for exchange in accordance with this Article 3Section 3.2(b) promptly after the Effective Time, book-entry shares representing the Closing Date Merger Consideration Shares issuable to the SpinCo Holders pursuant to Section 3.1(a)(i) (such book-entry shares of Parent Stock, together with any cash received by the Exchange Agent in respect of dividends or distributions with respect thereto pursuant to Section 3.2(g), as applicable, the form of Siebel Merger Consideration “Exchange Fund”). Following the Effective Time, the Exchange Agent shall deliver, pursuant to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock instructions from Parent (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated SharesParent Instructions”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Closing Date Merger Consideration Shares to be issued or paid in respect pursuant to this Article III out of the Certificates and Exchange Fund. The Exchange Fund shall not be used for any purpose other than as specified in this Section 3.2(b). The Parent Instructions will also instruct the Uncertificated Exchange Agent to establish a contra-CUSIP for each SpinCo Holder to facilitate the issuance of the Reserve Shares. Promptly , if any, pursuant to Section 3.3.
(c) As promptly as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, deliver to each record holder SpinCo Holder, from the Exchange Fund, the shares of Siebel Parent Common Stock at issuable in respect of such shares of SpinCo Common Stock pursuant to the Effective Time a letter of transmittal and instructions Merger (which shall specify that other than the delivery Reserve Shares). Each SpinCo Holder shall be effected, and risk entitled to receive in respect of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel SpinCo Common Stock held by such Person a book-entry authorization representing the number of whole shares of Parent Common Stock that have been converted into such holder has the right to receive the Siebel Merger Consideration pursuant to Section 3.1(a)(i) (and any dividends or distributions and other amounts pursuant to Section 3.2(g)).
(d) Each SpinCo Holder shall be entitled to receive, upon in respect of the SpinCo Common Stock, the (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or Closing Date Per Share Merger Consideration and (ii) Reserve Per Share Merger Consideration that becomes issuable, if any, upon receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, transferred each such Certificate or Uncertificated Share share of SpinCo Common Stock shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person payable in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stockrespect thereof. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for Upon payment of the Siebel Per Share Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official Consideration pursuant to applicable abandoned propertythe provisions of this Section 3.2, escheat or similar laws. Any amounts remaining unclaimed by holders each share of shares of Siebel SpinCo Common Stock two years after the Effective Time (or such earlier date, so transferred shall immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Considerationcancelled. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares Parent will reserve, out of Oracle Stock (excluding any shares its authorized capital stock, a number of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Common Stock constituting equal to the Oracle Merger Consideration. No separate certificates shall Reserve Shares, which such Reserve Shares will be issued in exchange for Oracle Stock in accordance with issued, if any, pursuant to the terms of Section 251(g3.3.
(e) of DGCL[Reserved.]
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Flyexclusive Inc.), Agreement and Plan of Merger and Reorganization (Jet.AI Inc.)
Surrender and Payment. (a) Prior to the Election Record DateFirst Merger Effective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonable acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) mailing and receiving Election Forms and determiningCertificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the First Merger Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 2.05 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.04(a)(i) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the aggregate Cash Consideration payable pursuant to Section 2.04(a)(i). Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed, the applicable Siebel Merger Consideration needed additional cash sufficient to be issued pay any dividends or paid other distributions to which such holders are entitled pursuant to Section 2.05(f) and cash in respect lieu of the Certificates and the Uncertificated Sharesany fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.09. Promptly after the First Merger Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the First Merger Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the First Merger Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter . All certificates (or evidence of transmittal shares in book-entry form) and instructions cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be sent referred to holders of Uncertificated Shares only to in this Agreement as the extent determined necessary by Oracle and “Exchange Fund.” Parent shall cause the Exchange Agent to effect deliver the transactions Merger Consideration contemplated herebyto be issued or paid pursuant to this Article 2 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a such Certificate or Uncertificated ShareShare (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.05(f)). The shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Company Common Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.05(f)) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have transfer or similar Taxes has been paid or are is not payable.
(d) After Upon the First Merger Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the First Merger Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Initial Surviving Corporation, the Surviving Company or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent upon demandor as otherwise instructed by Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.05 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, Consideration and any dividends and distributions (and cash in lieu of any fractional shares of Parent Common Stock) with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including the Initial Surviving Corporation and its Subsidiaries and the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.05, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Share Consideration have been registered, (i) in connection with the payment of the Share Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the First Merger Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Share Consideration with a record date on or after the First Merger Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting part of the Siebel Merger Share Consideration, and no cash payment in lieu of fractional shares as provided in pursuant to Section 3.112.09, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities2.05.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Stock in connection with the Siebel Merger Consideration made available Mergers, and the filing of any related Tax Returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe sole responsibility of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent and Merger Sub shall appoint an Computershare Trust Company, N.A. or such other paying agent as designated by Parent and Merger Sub and reasonably acceptable to the Company from time to time (the “Exchange Paying Agent”) to act as the agent for the purpose of paying the Merger Consideration in exchange for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging Book-Entry Shares. At or prior to the applicable Siebel Closing, Parent shall deposit, or shall cause to be deposited, with the Paying Agent, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to this Article IV (A) for certificates representing shares of Siebel Stock (such cash being hereinafter referred to as the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated SharesExchange Fund”). Parent shall make available to If the Exchange Agent, as needed, Fund is inadequate to pay the applicable Siebel Merger Consideration to be issued or paid that is payable in respect of all of the Common Shares represented by the Certificates and the Uncertificated Book-Entry Shares for any reason, Parent shall take all steps necessary to promptly (and in any case, within five (5) Business Days) deposit additional cash with the Paying Agent sufficient to pay all Merger Consideration required to be paid pursuant to this Article IV, and Parent shall in any event be liable for the payment thereof. Parent shall pay all charges and expenses, including those of the Paying Agent, incurred in connection with the exchange of Common Shares for the Merger Consideration. The Exchange Fund shall not be used for any purpose other than to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares. Promptly after the Effective TimeTime (and in any case, within five (5) Business Days), Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock Common Shares at the Effective Time Time, a letter of transmittal in such form as Parent and the Company shall reasonably agree (the “Letter of Transmittal”) and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or upon delivery of an “agent’s message” regarding the book-entry transfer of the Uncertificated Book-Entry Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon Upon (i) surrender to the Exchange Paying Agent of a CertificateCertificate (or affidavit of loss in lieu of the Certificate as provided in Section 4.5), together with a properly duly completed letter and validly executed Letter of transmittalTransmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect holder of the Siebel Stock represented by a such Certificate or Uncertificated Share. The shares holder of Parent Stock constituting part record of such Siebel Merger Consideration (if any)Book-Entry Shares, at Parent’s optionas the case may be, shall be entitled to receive a cash amount (after giving effect to any required Tax withholdings as provided in uncertificated bookSection 4.4) equal to the product of (i) the Offer Price and (ii) the number of Common Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 4.5) or Book-entry formEntry Shares, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawas the case may be. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 4.3, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationthe Offer Price or the right to demand to be paid the “fair value” of the Common Shares represented thereby as contemplated by Section 4.3. No interest shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article IV.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration payable upon the Effective Time, there shall be no further registration surrender of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated transfer of Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth terms hereof shall be deemed to have been paid in this Section 3.10full satisfaction of all rights pertaining to the Common Shares formerly represented by such Certificate or Book-Entry Shares.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration Fund made available to the Exchange Paying Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares, if any, shall be returned to Parent, upon demand.
(f) Any portion of the Exchange Fund deposited with the Paying Agent which remains unpaid to the holders of Common Shares for twelve (12) months after the Effective Time shall be delivered to Parent upon demand, and any holders of Common Shares who have not theretofore complied with this Article IV shall thereafter look only to Parent for the allocable Merger Consideration, without any interest thereon but subject to any applicable withholdings.
(g) None of Parent, the Company or the Surviving Corporation shall be liable to any holder of Common Shares for any portion of the Merger Consideration delivered to a public official pursuant to any abandoned property, escheat or similar Applicable Law.
(h) Certificates representing shares No dividends or other distributions with respect to capital stock of Oracle Stock immediately prior the Company with a record date on or after the Effective Time shall be paid to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares holder of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLunsurrendered Certificates.
Appears in 2 contracts
Sources: Merger Agreement (Everest Merger Sub, Inc.), Merger Agreement (Sport Chalet Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of exchanging shares of Siebel Stock, and (ii) exchanging Company Common Stock for the applicable Siebel Merger Stock Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid payable in respect of the Certificates and the Uncertificated Sharesthereof. Promptly As soon as reasonably practicable after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock at record of one or more Certificates as of the Effective Time Time, whose shares of Company Common Stock were converted into the right to receive the Stock Consideration pursuant to Section 2.6 (Effect on Capital Stock), a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as Parent may specify subject to the Company’s reasonable approval prior to the Effective Time, including instructions for use in such exchange; providedeffecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Stock Consideration. At the Effective Time, that any such letter Parent shall cause to be deposited with the Exchange Agent, for the benefit of transmittal and instructions the holders of shares of Company Common Stock, shares of Parent Common Stock (which shall be sent in non-certificated book-entry form) to be issued pursuant to Section 2.6 (Effect on Capital Stock) and an amount of cash in U.S. dollars sufficient to be paid pursuant to Section 3.5 (No Fractional Shares), payable to holders of Uncertificated the Book-Entry Shares only or payable to the extent determined necessary by Oracle holders of Certificates upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof), in each case, pursuant to the provisions of Article II and this Article III (it being understood and agreed, for the avoidance of doubt, that Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement). With respect to any Dissenting Shares, Parent shall not be required to deposit or cause to be deposited with the Exchange Agent any funds or shares of Parent Common Stock. Following the Effective Time, Parent agrees to effect make available to the transactions contemplated herebyExchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends pursuant to Section 3.1(f) (Dividends). All cash and book-entry shares representing Parent Common Stock deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”. The Exchange Agent shall deliver the Stock Consideration (and any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) or cash to be paid for dividends in accordance with Section 3.1(f)) out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent.
(b) Each holder of one or more Certificate(s) representing shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificatesuch Certificate(s) (or effective affidavit of loss in lieu thereof), together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent Agent, will be entitled to receive in exchange therefor (or such other evidence, if any, i) the number of transfer as the Exchange Agent may reasonably request) whole shares of Parent Common Stock (which shall be in the case of a non-certificated book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, form unless a physical certificate is requested by a holder requested) representing, in the aggregate, the whole number of shares of Siebel Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (ii) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock or is otherwise in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required under applicable lawTax withholding). Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel (A) Merger Consideration, (B) cash in lieu of any fractional shares and (C) unpaid dividends. No holder of Book-Entry Shares shall be required to deliver a Certificate or completed letter of transmittal to the Exchange Agent to receive (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required Tax withholding). No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends payable to holders of Certificates or Book-Entry Shares.
(c) If With respect to Certificate(s), in the event of a transfer of ownership of any portion Certificate that is not registered in the transfer books of the Siebel Merger Consideration is Company as of the Effective Time, (i) any Stock Consideration, (ii) if applicable, any cash to be paid to a Person other than the Person in whose name the surrendered Certificate lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, may be issued or the transferred Uncertificated Share is registered, it shall be a condition paid to such payment that (i) either such a transferee if the Certificate shall be is presented to the Exchange Agent, properly endorsed or shall otherwise be in proper form for transfer, accompanied by all documents required to evidence and effect such transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent evidence that any applicable stock transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes Taxes have been paid or are not payableapplicable, in each case, in form and substance, reasonably satisfactory to the Exchange Agent. With respect to Book-Entry Shares, issuance or payment of (1) any Stock Consideration, (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, shall only be made to the Person in whose name such Book-Entry Shares are registered in the stock transfer books of the Company as of the Effective Time.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationExchange Agent or Parent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in Article II and this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six months one year after the Effective Time shall be returned to Parent upon demandParent, and any such holder who has not exchanged his or her shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.1 prior to that time shall thereafter look only to Parent for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such holder’s shares without any interest thereonof Company Common Stock. Notwithstanding the foregoing, Parent neither Parent, Merger Sub, nor the Company shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid Merger Consideration, cash in lieu of fractional shares or any unpaid dividends delivered to a public official any Governmental Entity pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or any unpaid dividends remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeEntity shall, to the extent permitted by applicable lawLaw, become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to shares of Parent Common Stock constituting part of issued in the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Book-Entry Shares not transferred until such Certificates or Uncertificated Book-Entry Shares are surrendered or transferred, as the case may beapplicable, as provided in this SectionSection 3.1. Following such surrender surrender, subject to the effect of escheat or transferabandoned property (in accordance with Section 3.1(e)), there Tax or other applicable Law, shall be paid, without interest, to the Person in whose name record holder of the securities shares of Parent have been registered, Common Stock issued in exchange therefor (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends payable in lieu respect of fractional such shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Parent Common Stock with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and not previously paid and (ii) at the appropriate payment date, the amount dividends payable with respect to such shares of dividends or other distributions Parent Common Stock with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender or transfer payable with such surrender. For purposes of dividends in respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Common Stock, all shares of Parent Common Stock constituting to be issued pursuant to the Oracle Merger Consideration. At shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a bank or trust company reasonably acceptable to the Company (the “Exchange Paying Agent”) for the purpose of exchanging for the Merger Consideration (or, in the case of Company Stock Options, an amount based thereon) (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”), (ii) or (B) for subject to Section 2.05, uncertificated shares of Siebel Company Common Stock (the “Uncertificated Shares”)) or (iii) Company Stock Options, or Company Restricted Stock Units held by Non-Employee Holders. At or prior to the Effective Time, Parent shall make available deposit, or cause to be deposited, with the Exchange Paying Agent, as neededin trust for the benefit of the holders of shares of Company Common Stock, cash in U.S. dollars in an amount sufficient to pay the aggregate amount of the Merger Consideration (or, in the case of Company Stock Options, the applicable Siebel Merger Consideration aggregate amount based thereon) to be issued or paid in respect of the Certificates and Certificates, the Uncertificated Shares, and Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units held by Non-Employee Holders (any funds deposited with the Paying Agent, the “Payment Fund”). The Payment Fund shall not be used for any other purpose. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel shares of Company Common Stock or each Non-Employee Holder who holds Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units at the Effective Time a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentPaying Agent and which shall include customary provisions with respect to delivery of an “agent’s message” with respect to shares of Company Common Stock held in book-entry form) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. Upon such surrender, Parent shall pay, or cause the Paying Agent to pay from the Payment Fund, the Merger Consideration payable to each such holder pursuant to this Article 2. Each Non-Employee Holder of Company Stock Options that have been converted into the right to receive a cash amount in accordance with Section 2.05 shall be entitled to receive such cash amount upon delivery of a properly completed letter of transmittal.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Paying Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to (or, in the Exchange case of Company Stock Options, an amount based thereon) deposited with the Paying Agent pursuant to Section 3.10(a2.03(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six or Non-Employee Holders twelve months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock or Company Stock Options for the Siebel Merger Consideration (or, in the case of Company Stock Options, an amount based thereon) in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock or any Non-Employee Holder for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two years after the Effective Time (or such earlier datethat, immediately prior pursuant to such time when the amounts Applicable Law, would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a2.03(a) or Section 3.11 to pay for shares of Siebel Company Common Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(hg) Certificates representing shares The Paying Agent shall invest any cash in the Payment Fund as directed by Parent; provided that Parent shall not direct the Paying Agent to invest any cash in the Payment Fund in any investment if such investment would, or would reasonably be expected to, prevent or delay timely payment of Oracle the Merger Consideration pursuant to this Agreement. Any interest and other income resulting from such investments shall be paid to Parent. In the event the Payment Fund shall be insufficient to pay the aggregate Merger Consideration (or, in the case of Company Stock immediately prior Options, the aggregate amount based thereon) payable in connection with the Merger, Parent shall, or shall cause the Surviving Corporation to, promptly deposit additional funds with the Paying Agent in an amount which is equal to the Initial Effective Time shall, from and after deficiency in the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock amount required to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLmake such payment.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably satisfactory to the Company (the “Exchange Paying Agent”) for the purpose of paying the Merger Consideration to the holders of Company Common Stock and shall enter into a Paying Agent Agreement with the Paying Agent. At or prior to the Effective Time, Parent shall deposit, or cause Merger Subsidiary to deposit, with the Paying Agent, for the benefit (ifrom and after the Effective Time) mailing and receiving Election Forms and determiningof the holders of shares of Company Common Stock, for payment in accordance with this Article 3Section 2.03 through the Paying Agent, cash sufficient to pay the form of Siebel aggregate Merger Consideration pursuant to Section 2.02. All cash deposited with the Paying Agent pursuant to this Section 2.03(a) shall herewith be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (referred to as the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the Payment Fund“Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective TimeTime (and in any event within two Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Paying Agent to send, to each record Person who was, immediately prior to the Effective Time, a holder of Siebel record of shares of Company Common Stock at entitled to receive payment of the Effective Time Merger Consideration pursuant to Section 2.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebypayment.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such taxes have tax has been paid or are is not payable.
(d) After The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Paying Agent for any reason, they shall be canceled and exchanged for converted into the applicable Siebel right to receive only the Merger ConsiderationConsideration to the extent provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a2.03(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six (6) months after the Effective Time shall be returned delivered to Parent upon demandor otherwise on the instruction of Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). On and after the Effective Time, Parent shall make available deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent, as needed, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Stock six Shares twelve (12) months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.02 prior to that time shall thereafter look only to Parent and/or the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Randstad North America, L.P.), Merger Agreement (SFN Group Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent the Acquiror shall appoint an agent Continental Stock Transfer & Trust Company (the “Exchange Paying Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). Parent At or promptly following the Effective Time, the Acquiror shall make available deposit, or cause the Surviving Corporation to deposit, with the Exchange Paying Agent, as needed, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 6(b), the Acquiror shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all payments required under this Agreement, and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares for the Merger Consideration. Promptly after the Effective Time, Parent the Acquiror shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 8, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Agreement, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person person other than the Person person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes tax required as a result of such payment to a Person person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes have tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Agreement.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six (6) months after the Effective Time shall be returned to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent the Surviving Corporation shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws (as hereinafter defined). Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, the Surviving Corporation free and clear of any claims or interest of any Person person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parentthe Surviving Corporation, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Sonomawest Holdings Inc), Merger Agreement (Stapleton Acquisition Co)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an select a nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as paying agent in the Merger (the “Exchange Paying Agent”) for the purpose payment of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of each share of Class A Common Stock outstanding immediately prior to the Certificates Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Uncertificated Effective Time, in each case, other than the Canceled Shares and except for any Dissenting Shares. Promptly after At or prior to the Effective Time, Parent shall senddeposit or cause to be deposited (i) with the Paying Agent, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) with the Company, cash in an amount sufficient to pay the aggregate RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Compensatory Award Fund”). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.02 or Section 3.06, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.02(a) out of the Exchange Fund. Parent shall cause the Surviving Corporation or the applicable Subsidiary to pay the RSU Consideration contemplated to be paid pursuant to Section 3.06 out of the Compensatory Award Fund. The Exchange Agent to send, to each record holder of Siebel Stock at Fund and the Compensatory Award Fund shall not be used for any other purpose.
(b) As soon as reasonably practicable after the Effective Time and in any event not later than the second (2nd) Business Day following the Effective Time, Parent will cause the Paying Agent to send to each holder of record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Class A Common Stock (other than the Canceled Shares and except for any Dissenting Shares) (i) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) or Book-Entry Shares, as applicable, to the Exchange Paying Agent) in such form as Parent and the Company may reasonably agree, for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder effecting delivery of shares of Siebel Class A Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a CertificatePaying Agent, together with a properly completed letter of transmittal, or and (ii) receipt instructions for use in effecting the surrender of an “agent’s message” by the Exchange Agent Certificates (or such other evidence, if any, effective affidavits of transfer as the Exchange Agent may reasonably requestloss in lieu thereof) in the case of a bookor Book-entry transfer of Uncertificated Entry Shares, as applicable, in exchange for the Siebel Merger Consideration in respect of such form as Parent and the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case Company may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationreasonably agree.
(c) If Upon the surrender of a Certificate (or affidavit of loss in lieu thereof) or a Book-Entry Share, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, as promptly as practicable (but in any portion event within two (2) Business Days), the Merger Consideration pursuant to the provisions of this Article III, and the Certificates or Book-Entry Shares surrendered shall forthwith be canceled. In the event of a transfer of ownership of Class A Common Stock that is not registered in the transfer records of the Siebel Company, payment of the appropriate amount of Merger Consideration is to may be paid made to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered is registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share shall be properly transferred. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.
(d) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that, to the extent possible, (i) if the Closing occurs at or prior to 2:00 p.m. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Class A Common Stock held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 2:00 p.m. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(e) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Book-Entry Share is registered, it shall be a condition to of such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay pay, or cause to be paid, any Transfer Taxes required by reason of the Exchange Agent any transfer or other taxes required as a result making of such cash payment to a Person other than the registered holder of such the surrendered Certificate or Uncertificated Book-Entry Share or shall establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes Taxes have been paid or are not payable.
(df) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Class A Common Stock. From and after the Effective Time, the holders of Certificates or Book-Entry Shares representing shares of Class A Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Class A Common Stock, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Paying Agent, the Surviving CorporationCorporation or Parent, they shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(eg) Any portion of the Siebel Merger Consideration made available Exchange Fund (including any interest and other income received by Parent to the Exchange Paying Agent pursuant to Section 3.10(ain respect of all such funds) that remains unclaimed by the holders of shares of Siebel Class A Common Stock six months after the date which is one (1) year following the Effective Time shall be returned to Parent (or its designee as directed by ▇▇▇▇▇▇) upon Parent’s demand, and any such . Any holder of shares of Class A Common Stock who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration his, her or its Certificates or Book-Entry Shares in accordance with this Section 3.10 3.03 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereonholder’s Certificates or Book-Entry Shares. Parent shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Certificates or Book-Entry Shares for the Merger Consideration. Notwithstanding the foregoing, Parent none of Parent, the Company or the Surviving Corporation, nor any employee, officer, partner, director, manager, agent or Affiliate of the foregoing, shall not be liable to any Person, including any holder of shares of Siebel Class A Common Stock or Company Compensatory Awards, including for any amounts paid Merger Consideration or PSU/RSU Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts portion of the Exchange Fund or Compensatory Award Fund remaining unclaimed by holders as of shares of Siebel Stock two years after the Effective Time (or such earlier date, a date that is immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeAuthority will, to the extent permitted by applicable lawLaw, become the property of Parent, free and clear of all or any claims or interest of any Person previously entitled thereto.
(fh) No dividends The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or other distributions the Paying Agent from making the payments required by this Article III, and following any losses, Parent shall promptly provide additional funds to the Paying Agent to ensure the Exchange Fund is at a level sufficient for the Paying Agent to pay the aggregate remaining cash payments to be paid by the Paying Agent as contemplated by this Article III, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States of America with respect maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to Parent Stock constituting part or its designee as directed by ▇▇▇▇▇▇.
(i) All Merger Consideration and PSU/RSU Consideration issued or paid upon conversion of the Siebel Merger ConsiderationClass A Common Stock (including, and no cash payment for the avoidance of doubt, Class A Common Stock issued upon the Class B Common Stock Conversion), the Company PSU Awards or the Company RSU Awards, as applicable, in lieu accordance with the terms of fractional shares as provided in Section 3.11this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the holder of any Certificates not surrendered such Class A Common Stock, Company PSU Awards or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferredCompany RSU Awards, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Altus Power, Inc.), Merger Agreement (Altus Power, Inc.)
Surrender and Payment. (a) 1.3.1. Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company as exchange agent (the “"Exchange Agent”") in connection with the Merger for the purpose of exchanging Common Certificates for Parent ADRs or for certificates representing Parent Ordinary Shares (i"Parent Certificates"), as applicable, and cash in lieu of fractional Parent Depositary Shares and Parent Ordinary Shares, as applicable, in accordance with Section 1.5, and exchanging Preferred Certificates for the Preferred Consideration. The Company shall act as agent for each holder of record of Company Common Shares as of the Effective Time that does not elect to receive Parent Ordinary Shares in lieu of Parent Depositary Shares (each, a "Non-Electing Record Holder") mailing and receiving Election Forms shall enter into an agreement (the "Nominee Agreement") with Parent and determiningthe Exchange Agent. Parent shall issue the Parent Ordinary Shares that will represent the Parent Depositary Shares issuable pursuant to the Merger in registered form to the Exchange Agent (or its nominee), as nominee and agent for and on behalf of the Non-Electing Record Holders (the "Nominee") for the issuance of Parent Depositary Shares in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent and no election has been made to receive Parent Ordinary Shares, subject to the terms and conditions of this Agreement and the Nominee Agreement. The Parent Ordinary Shares in registered form held by the Nominee of the Non-Electing Record Holders shall be deposited by the Nominee or on its behalf with the Depositary (or as it may direct) as and when required for the delivery of Parent Depositary Shares in accordance with this Article 3I. To the extent required, the form Exchange Agent will requisition from the Depositary, from time to time, that number of Siebel Merger Consideration Parent Depositary Shares, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares of Non-Electing Record Holders for which Common Certificates have been properly delivered to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Exchange Agent. Parent shall make available deposit with the Exchange Agent, from time to time that number of Parent Certificates, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent, as needed, the applicable Siebel Merger Consideration and an election has been made to receive Parent Ordinary Shares. Parent shall also from time to time deposit or cause to be issued or paid deposited with the Exchange Agent U.S. dollars in an amount sufficient to provide the Exchange Agent with the cash to fund payments to be made pursuant to Section 1.3.6. The Company shall maintain, pursuant to Section 1.9, sufficient funds in an escrow account with the Exchange Agent to provide the Exchange Agent with the cash to fund payments in respect of the Certificates and the Uncertificated SharesPreferred Consideration.
1.3.2. Promptly after the Effective Time, Parent the Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at record as of the Effective Time of Company Common Shares and/or Company Money Market Preferred Shares (other than holders of shares that constitute Excluded Shares) a letter of transmittal and instructions (which shall specify that with respect to holders of Company Common Shares also serve as a form of election), in a form upon which the delivery shall be effectedCompany and Parent may reasonably agree, and risk of loss and title shall pass, only upon proper for use in effecting delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such . This letter of transmittal and instructions shall be sent provide each holder of record of Company Common Shares with the option to holders elect to receive Parent Ordinary Shares in lieu of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Parent Depositary Shares. Each holder of shares of Siebel Stock Company Common Shares or Company Money Market Preferred Shares that have been converted in the Merger into the right to receive the Siebel Merger Consideration shall be entitled to receiveconsideration set forth in Sections 1.2.2 and 1.2.3, as applicable, shall, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittaltransmittal covering the Company Common Shares or Company Money Market Preferred Shares, as applicable, represented by the Certificate or Certificates, receive (i) the number of whole Parent Depositary Shares (or, if an election is duly made therefor, the number of whole Parent Ordinary Shares) into which all of the Company Common Shares, represented by the holder's Common Certificate or Common Certificates, are converted in accordance with Section 1.2.2, (ii) receipt a check in an amount of U.S. dollars (after giving effect to any required tax withholdings) equal to (A) any cash in lieu of fractional interests in shares to be paid pursuant to Section 1.5, plus (B) any cash dividends or other distributions that the holder has the right to receive pursuant to Section 1.3.6 and/or (iii) a check in an “agent’s message” amount of U.S. dollars (after giving effect to any required tax withholdings) equal to the aggregate amount of the Preferred Consideration which all of the Company Money Market Preferred Shares, represented by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a holder's Preferred Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)Preferred Certificates, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable laware converted pursuant to Section 1.2.3. Until so surrendered or transferred, as the case may besurrendered, each such Common Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Considerationthe number of whole Parent Depositary Shares and/or Parent Ordinary Shares, as applicable, into which the Company Common Shares represented by that Common Certificate are converted in accordance with Section 1.2.2 and the applicable amounts provided in the foregoing clause (ii) and each Preferred Certificate shall, after the Effective Time, represent for all purposes only the right to receive the Preferred Consideration into which the Company Money Market Preferred Shares represented by that Preferred Certificate are converted in accordance with Section 1.2.3.
(c) 1.3.3. If any portion of the Siebel Merger Consideration is Parent Depositary Shares, Parent Ordinary Shares or Preferred Consideration, as applicable, are to be issued or paid to a Person person other than the Person in whose name the surrendered registered holder of Company Common Shares or Company Money Market Preferred Shares, as applicable, represented by a Certificate or the transferred Uncertificated Share is registeredCertificates surrendered with respect thereto, it shall be a condition to such this issuance or payment that (i) either such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person (as defined in Section 2.1.1) requesting such this issuance or payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such this issuance or payment to a Person other than the registered holder of such Certificate these Company Common Shares or Uncertificated Share Company Money Market Preferred Shares, as applicable, or establish to the satisfaction of the Exchange Agent that such taxes have this tax has been paid or are is not payable.
1.3.4. The stock transfer books of the Company shall be closed at the close of trading on the New York Stock Exchange (d"NYSE") After on the day prior to the Effective Time, and thereafter there shall be no further registration of transfers of shares of Siebel StockCompany Common Shares or Company Money Market Preferred Shares that were outstanding prior to the Effective Time. If, after After the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they Corporation for transfer shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
1.3.5. Any Parent Ordinary Shares or Parent Depositary Shares to be issued in respect of Company Common Shares (e) Any portion and any cash in lieu of the Siebel Merger Consideration made available by fractional interests in Parent Ordinary Shares or Parent Depositary Shares to the Exchange Agent be paid pursuant to Section 3.10(a1.5, plus any cash dividend or other distribution that a former holder of Company Common Shares has the right to receive pursuant to Section 1.3.6) and any Preferred Consideration to be paid in respect of Company Money Market Preferred Shares, in each case pursuant to this Article I, that remains unclaimed by the holders any former holder of shares of Siebel Stock Company Common Shares or Company Money Market Preferred Shares six months after the Effective Time shall be returned held by the Exchange Agent (or a successor agent appointed by Parent) or shall be delivered to the Depositary upon the instruction of Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for held by the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect theretoDepositary, in respect either case subject to the instruction of such shares without any interest thereonParent in an account or accounts designated for this purpose. Notwithstanding the foregoing, Parent shall not be liable to any former holder of shares of Siebel Stock Company Common Shares or Company Money Market Preferred Shares for any amounts securities delivered or any amount paid by the Depositary, the Exchange Agent or its nominee, as the case may be, to a public official pursuant to applicable abandoned property, escheat or similar property laws. Any amounts cash remaining unclaimed by holders of shares of Siebel Stock Company Common Shares or Company Money Market Preferred Shares two years after the Effective Time (or such any earlier date, date immediately prior to such that time when the amounts as this cash would otherwise escheat to or become property of any Governmental EntityEntity (as defined in Section 2.1.4.1)) shall becomeor as is otherwise provided by applicable Law shall, to the extent permitted by applicable lawLaw, become the property of the Surviving Corporation or Parent, free and clear as Parent may determine (provided that unclaimed Preferred Consideration shall become property of any claims or interest of any Person previously entitled theretothe Surviving Corporation).
(f) 1.3.6. No dividends or other distributions with respect to Parent Stock constituting part of Depositary Shares and Parent Ordinary Shares issuable with respect to the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Company Common Shares shall be paid to the holder of any unsurrendered Common Certificates not surrendered or of any Uncertificated Shares not transferred until such those Common Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transferArticle I. Upon surrender, there shall be paidissued and/or paid to the holder of the Parent Depositary Shares or Parent Ordinary Shares issued in exchange therefor, without interest, to the Person in whose name the securities of Parent have been registered, (iA) at the time of such surrender or transfersurrender, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions payable with respect to those Parent Depositary Shares and Ordinary Depositary Shares with a record date on or after the date of the Effective Time previously paid and a payment date on or payable on prior to the date of such this surrender with respect to such securities and not previously paid and (iiB) at the appropriate payment date, the amount of dividends or other distributions payable with respect to those Parent Depositary Shares and Parent Ordinary Shares with a record date on or after the date of the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender surrender. For purposes of dividends or transfer payable with other distributions in respect of Parent Depositary Shares and Parent Ordinary Shares, all Parent Depositary Shares and Parent Ordinary Shares to such securities.
(g) Any portion of the Siebel Merger Consideration made available be issued and delivered pursuant to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected Merger shall be returned to Parent, upon demand.
(h) Certificates representing shares deemed issued and outstanding as of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, and holders of these shares shall not be entitled to receive any dividend in respect of the Exchange Agent shall exchange by book entry transfer all uncertificated shares calendar year 1999 or any other dividend in respect of Oracle Stock (excluding any shares which the record date is prior to the date of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Young & Rubicam Inc), Merger Agreement (WPP Group PLC)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a nationally recognized financial institution reasonably acceptable to Parent and the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Company Shares (the “Certificates”) or (Bii) for uncertificated shares of Siebel Stock Company Shares (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or prior to the Effective Time, Parent shall deposit with, or otherwise make available to to, the Exchange Agent, as needed, Agent the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.04(d), all or a portion of the Company Equity Award Consideration to all or a portion of the Employee Holders). Parent agrees to make available to the Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is entitled pursuant to Section 2.03(f). Promptly after the Effective TimeTime (and in any event within five (5) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock Company Shares at the Effective Time (other than the Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange; provided, that any such . Such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to in the extent determined necessary by Oracle form and have such provisions as Parent and the Exchange Agent to effect the transactions contemplated herebyCompany may reasonably agree.
(b) Each holder of shares of Siebel Stock Company Shares that have been converted into the right to receive the Siebel Merger Consideration (other than the Company Restricted Stock) shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock payable for each such Company Share represented by a such Certificate or for each such Uncertificated Share. The shares of Parent Stock Shares constituting part of such Siebel Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawApplicable Law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration and the right to receive any dividends or other distributions pursuant to Section 2.03(f). At the time set forth in Section 2.04(e), each Non-Employee Holder shall be entitled to receive such Siebel Merger Non-Employee Holder’s Company Equity Award Consideration and, if determined by Parent pursuant to Section 2.04(e), all or a portion of the Company Equity Award Consideration payable to all or a portion of the Employee Holders shall be paid pursuant to this Section 2.03. No interest shall be paid or shall accrue on any cash payable upon surrender of any Company Shares or upon the Company Equity Award Consideration.
(c) If any portion of the Siebel Merger Consideration (other than in respect of the Company Restricted Stock) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Transfer Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent and Parent that such taxes have Transfer Tax has been paid or are is not payable. The payment of any transfer, documentary, sales, use, stamp, registration, value-added and other Taxes and fees (including any penalties and interest) (“Transfer Taxes”) incurred solely by a holder of Company Shares in connection with the Merger and any other transactions contemplated hereby, and the filing of any related Tax Returns, shall be the sole responsibility of such holder.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock six Company Shares that have been converted into the right to receive the Merger Consideration nine months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Stock such Company Shares for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of the Siebel Merger Consideration, Consideration and any dividends and distributions with respect theretothereto pursuant to Section 2.03(f), in respect of such shares Company Shares without any interest thereonthereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock Company Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock Company Shares that have been converted into the right to receive the Merger Consideration two (2) years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu proceeds from the sale of fractional shares as provided in Section 3.112.06, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu proceeds from the sale of fractional shares to which such Person is entitled pursuant to Section 3.11 and 2.06 and, at the time of such surrender or transfer, the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent Citibank, N.A. or any other bank or trust company which shall be approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed) (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Shares (the “Certificates”) or (Bii) for uncertificated shares of Siebel Stock non-certificated Shares represented by book entry (the “Uncertificated Shares”). Prior to the Effective Time, Parent shall make available deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of holders of Shares and ADSs, a cash amount in immediately available funds sufficient for the Exchange Agent to make payments under Sections 2.02(a) and 2.02(b) (such aggregate cash amount being hereinafter referred to as neededthe “Exchange Fund”), the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. If any Dissenting Shareholder withdraws or loses its dissenter’s rights pursuant to the Section 238 of the Cayman Companies Law with respect to any Dissenting Shares, such Shares shall not be subject to Section 2.09 and Parent shall promptly deposit, or cause to be deposited, into the Exchange Fund, a cash amount in immediately available funds equal to the product of the number of such Shares for which such shareholder has lost its dissenter’s rights pursuant to the Cayman Companies Law, multiplied by the Per Share Merger Consideration. If for any reason following the Effective Time the cash in the Exchange Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent or the Surviving Company shall promptly deposit or cause to be deposited cash in immediately available funds into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Promptly after the Effective TimeTime (and in any event within three (3) Business Days), Parent shall send, or shall cause the Exchange Agent to send, send to each record holder of Siebel Stock Person who was, at the Effective Time Time, a registered holder of Shares entitled to receive the Per Share Merger Consideration pursuant to Section 2.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Shanda Interactive Entertainment LTD), Merger Agreement (Ku6 Media Co., LTD)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a United States bank and trust company reasonably acceptable to the Company as agent (the “Exchange Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Shares (the “Certificates”) or (Bii) for uncertificated shares of Siebel Stock Shares (the “Uncertificated Shares”). The Company and Parent shall make available enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Exchange Company and Parent prior to the Effective Time. Immediately prior to the Effective Time, Parent shall deposit with the Paying Agent (or shall cause the Company to deposit with the Paying Agent), as needed, cash sufficient to pay the applicable Siebel aggregate Merger Consideration (the “Aggregate Merger Consideration”) to be issued or paid in respect of the Certificates and the Uncertificated SharesShares (such cash, the “Consideration Fund”). In addition, promptly after the Effective Time on the date of the Closing, Parent shall make available (or shall cause the Company to make available) as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Effective Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 2.03(g)), Parent shall promptly deliver, or cause to be delivered (including by causing the Company, following the Effective Time, to deliver), additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event within three Business Days after the Effective Time), Parent the Company shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock Shares at the Effective Time (other than Parent or any of its applicable Affiliates), a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any with the form and substance of such letter of transmittal and instructions shall to be sent reasonably agreed to holders of Uncertificated Shares only by Parent and the Company and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyEffective Time.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock payable for each such Share represented by a such Certificate or for each such Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Shares.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent and Parent that such taxes have Tax has been paid or are is not payable.
(d) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than three months or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the former Company Stockholders shall be the sole and exclusive property of the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a) and shall be paid as it directs. No investment of the Consideration Fund shall relieve any Person from promptly making the payments required by this Article 2, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of the applicable Company Stockholders in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(e) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock six months Shares that have been converted into the right to receive the Merger Consideration one year after the Effective Time Time, to the extent permitted by Applicable Law, shall be returned to Parent the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand, and any such holder who has not exchanged shares of Siebel Stock such Shares for the Siebel Merger Consideration in accordance with this Section 3.10 2.03 prior to that time shall thereafter look only to Parent for payment such party only as general creditors of such party with respect to the Merger Consideration that may be payable upon due surrender of the Siebel Merger ConsiderationCertificates or Uncertificated Shares held by them, without interest and subject to any dividends and distributions withholding of Taxes required by Applicable Law in accordance with respect thereto, in respect of such shares without any interest thereonthis Section 2.03(f). Notwithstanding the foregoing, Parent neither Parent, the Company nor any of their Affiliates shall not be liable to any holder of shares of Siebel Stock Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock Shares that have been converted into the right to receive the Merger Consideration two years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, become to the extent permitted by applicable law, Applicable Law the property of ParentParent or the Company, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a2.03(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parentthe party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (ProFrac Holding Corp.), Merger Agreement (FTS International, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateMerger Effective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) mailing and receiving Election Forms and determiningCertificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the Merger Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 2.04 through the Exchange Agent, as needed(x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock, (y) cash sufficient to pay the applicable Siebel Merger aggregate Cash Consideration payable pursuant to be issued or paid in respect of Section 2.03(a) and (z) New CVR Certificates representing the Certificates New CVRs issuable pursuant to Section 2.03(a) and the Uncertificated SharesNew CVR Agreement. Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.04(f) and cash in lieu of any fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.08. Promptly after the Merger Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Merger Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Merger Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter . All certificates (or evidence of transmittal shares in book-entry form) representing shares of Parent Common Stock and instructions New CVR Certificates and cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be sent referred to holders of Uncertificated Shares only to in this Agreement as the extent determined necessary by Oracle and “Exchange Fund”. Parent shall cause the Exchange Agent to effect deliver the transactions Merger Consideration contemplated herebyto be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of each share of the Siebel Company Common Stock represented by a such Certificate or Uncertificated ShareShare (including cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)). The shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any)the Share Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Company Common Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 or Section 2.04(f)) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes transfer or similar Taxes have been paid or are not payable.
(d) After Upon the Merger Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the Merger Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Article II (including this Section 3.102.04).
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent upon demandor as otherwise instructed by Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect theretoto the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates, along with the delivery of a properly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.04, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Share Consideration have been registered, (i) in connection with the payment of the Share Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.08, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Merger Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Share Consideration with a record date on or after the Merger Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting part of the Siebel Merger Share Consideration, and no cash payment in lieu of fractional shares as provided in pursuant to Section 3.112.08, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities2.04.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred by a holder of Company Common Stock in connection with the Siebel Merger Consideration made available Merger, and the filing of any related Tax Returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe responsibility solely of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “"Exchange Agent”") for the purpose of exchanging certificates representing Shares (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A"Certificates") for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall will make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock Shares at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the right to receive the Siebel Merger Consideration shall will be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock Shares represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCertificate. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock Shares six months after the Effective Time shall be returned to Parent Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Stock them for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to the Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock Shares two years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable law, the property of Parent, Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.113.07, shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfersurrender, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfersurrender, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 3.07 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Fedex Corp), Agreement and Plan of Merger (American Freightways Corp)
Surrender and Payment. (a) Prior to the Election Record DatePACIFIC shall, Parent shall appoint an agent (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time and upon surrender of a letter of transmittal and instructions DISTRIBUTORS Certificate (which shall specify that the delivery shall be effectedhereinafter defined), and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares deliver to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each each holder of record of one or more certificates representing DISTRIBUTORS Common Stock (collectively, the "DISTRIBUTORS Certificates") that has been converted into PACIFIC Common Stock as set forth in Section 1(f), a certificate or certificates representing the number of PACIFIC Common Stock into which the shares of Siebel Stock that represented by the DISTRIBUTORS Certificate so surrendered shall have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) provided in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated ShareSection 1(f). The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration PACIFIC Common Stock is to be paid to issued in a Person name other than the Person that in whose name the which a DISTRIBUTORS Certificate so surrendered Certificate or the transferred Uncertificated Share is then registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such exchange that the DISTRIBUTORS Certificate surrendered be accompanied by payment to of any applicable transfer taxes and documents required for a Person other than valid transfer in the registered holder reasonable judgment of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockPACIFIC and its counsel. If, From and after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporationuntil so surrendered, they each DISTRIBUTORS Certificate shall be canceled deemed for all corporate purposes, except as set forth below, to evidence the number of PACIFIC Common Stock into which the DISTRIBUTORS Common Stock represented by such DISTRIBUTORS Certificate shall have been converted. Unless and exchanged for until any DISTRIBUTORS Certificate shall be so surrendered, the applicable Siebel Merger Considerationholder of such DISTRIBUTORS Certificate shall have no right to vote or to receive any dividends or other distributions made to holders of record of PACIFIC Common Stock after the Effective Time. Upon surrender of a DISTRIBUTORS Certificate, the holder of record thereof shall receive, together with certificates representing PACIFIC Common Stock to which he shall be entitled in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration 1(f), all dividends and other distributions which shall have theretofore been paid or made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares record of Siebel PACIFIC Common Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shares. PACIFIC shall be returned authorized to Parent, deliver certificates for PACIFIC Common Stock attributable to any DISTRIBUTORS Certificate theretofore issued which has been lost or destroyed upon demand.
(h) Certificates representing shares receipt of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent satisfactory evidence of ownership of the shares of Parent DISTRIBUTORS Common Stock constituting the Oracle Merger Considerationformerly represented thereby and of appropriate indemnification of PACIFIC. At the Effective TimeExhibit B annexed hereto sets forth each holder of record of DISTRIBUTORS Common Stock, the Exchange Agent shall exchange by book entry transfer all uncertificated number of shares of Oracle DISTRIBUTORS Common Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)owned by such holder, and the DISTRIBUTORS Certificate(s) for representing the shares of Parent DISTRIBUTORS Common Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLowned by such holder.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Development Corp), Merger Agreement (Pacific Development Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) mailing Certificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the Effective Time, in consideration of and receiving Election Forms and determiningin exchange for the Cancellation, Parent shall deposit with the ADS Depositary Parent Ordinary Shares underlying the Parent ADSs issuable pursuant to Section 2.03(a). As of the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 2.04 through the Exchange Agent, the Parent ADSs issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock. For the avoidance of doubt, any stamp duty liability arising in connection with the deposit of Parent ADSs with the Exchange Agent will be payable by Parent. Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed, the applicable Siebel Merger Consideration needed additional cash sufficient to be issued pay any dividends or paid in respect of the Certificates and the Uncertificated Sharesother distributions to which such holders are entitled pursuant to Section 2.04(f). Promptly after the Effective TimeTime (and in no event later than five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be referred to in this Agreement as the “Exchange Fund”. Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided, that any such letter of transmittal and instructions cash shall only be sent to holders of Uncertificated Shares only to invested in the extent determined necessary by Oracle and manner provided in the Exchange Agent to effect Agreement. Any interest and other income resulting from such investments shall be the transactions contemplated herebyproperty of, and paid to, Parent on termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon within five Business Days of the later to occur of (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of each share of the Siebel Company Common Stock represented by a such Certificate or Uncertificated ShareShare (including any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.04(f)). The shares of Parent Stock ADSs constituting part of such Siebel the Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate American depositary receipt evidencing such Parent ADSs is requested by a holder of shares of Siebel Company Common Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.04(f)) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any stamp duty, stamp duty reserve tax, transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes stamp duty, stamp duty reserve tax, transfer or similar Taxes have been paid or are not payable.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, Consideration (and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.04(f)) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Article II (including this Section 3.102.04).
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six 12 months after following the Effective Time Closing Date shall be returned delivered to Parent upon demandor as otherwise instructed by Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, Consideration (and any dividends and distributions with respect theretoto the Merger Consideration as contemplated by Section 2.04(f)), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates, along with the delivery of a properly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.04, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the Parent ADSs constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, the aggregate amount of all dividends or other distributions payable with respect to such Parent ADSs, with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole Parent ADSs constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to Parent Stock ADSs constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Consideration shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities2.04.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Chiasma, Inc), Merger Agreement (Amryt Pharma PLC)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a paying agent reasonably acceptable to the Company (the “Exchange Paying Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) mailing and receiving Election Forms and determiningthe Certificates, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). On and after the Effective Time, Parent shall make available deposit, or cause the Surviving Corporation to deposit, with the Exchange Paying Agent, as needed, sufficient funds to pay the applicable Siebel aggregate Merger Consideration to be issued or paid that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Uncertificated SharesBook-Entry Shares (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of the shares of Company Common Stock for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only . Prior to the extent determined necessary by Oracle Effective Time, Parent and the Exchange Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to effect ensure that (i) if the transactions contemplated herebyClosing occurs prior to 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 2.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares, and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article II.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six (6) months after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.02 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Access to Money, Inc.), Merger Agreement (Cardtronics Inc)
Surrender and Payment. (a) Prior to the Election Record Date, Parent shall appoint an agent (the “Exchange Agent”) reasonably acceptable to Company for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging certificates which immediately prior to the form of Siebel Merger Consideration to be received by each holder of Effective Time evidenced shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration pursuant to be issued an exchange agent agreement in form and substance reasonably satisfactory to Company. At or paid as promptly as practicable (and, in respect of the Certificates and the Uncertificated Shares. Promptly any event, within two (2) business days) after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article II, and Parent shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of fractional shares pursuant to Section 2.3 and any dividends or distributions to which holders of shares of Company Common Stock may be entitled pursuant to Section 2.2(c). The Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal and instructions for use in such exchange (which shall be in form and substance reasonably satisfactory to Parent and Company and shall specify that the delivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and (ii) instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebysurrender of the Certificates in exchange for the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c).
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel applicable Merger Consideration shall be entitled Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to receiveSection 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c), upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such shares and such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in require, shall be entitled to receive the case of a book-entry transfer of Uncertificated Shares, the Siebel applicable Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Sharesuch shares of Company Common Stock. The shares of Parent Stock constituting part holder of such Siebel Merger Consideration (if any)Certificate, at Parent’s optionupon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(c) and cash payable in respect of any fractional shares pursuant to Section 2.3. Certificates surrendered shall forthwith be in uncertificated book-entry form, unless a physical certificate is requested by a holder canceled as of shares of Siebel Stock or is otherwise required under applicable lawthe Effective Time. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share Certificate, following the Effective Time, shall represent after the Effective Time for all purposes only the right to receive such Siebel the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.2.
(c) If any portion of the Siebel Merger Consideration is to be paid to Whenever a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer dividend or other taxes required as distribution is declared or made after the date hereof with respect to Parent Common Stock with a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, record date after the Effective Time, Certificates such declaration shall include a dividend or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, other distribution in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of all shares of Siebel Parent Common Stock for any amounts paid to a public official issuable pursuant to applicable abandoned property, escheat or similar lawsthis Agreement. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock constituting part of with a record date after the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Effective Time shall be paid to the holder of any Certificates not surrendered or unsurrendered Certificate with respect to the Parent Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.2. Subject to applicable law, following surrender of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transferCertificate, there shall be paidpaid to the record holder of the certificates representing Parent Common Stock issued in exchange therefor, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment datesurrender, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable theretofore paid with respect to such securitiesParent Common Stock.
(gd) Any portion If a transfer of ownership of shares of Company Common Stock is not registered in the Siebel stock transfer books or ledger of Company, or if any certificate for the applicable Merger Consideration made available is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition to the issuance thereof that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such exchange shall have paid to the Exchange Agent pursuant to Section 3.10(a) any transfer or Section 3.11 to pay other taxes required as a result of the issuance of a certificate for Parent Common Stock in any name other than that of the registered holder of such shares of Siebel Stock for which appraisal rights have been perfected shall be returned to ParentCompany Common Stock, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior or establish to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares satisfaction of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares that such tax has been paid or is not payable. For purposes of Oracle Stock (excluding this Agreement, “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLother entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
Appears in 2 contracts
Sources: Merger Agreement (Traffix Inc), Merger Agreement (New Motion, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent BNC or Bank shall appoint an agent, who shall be reasonably acceptable to Wilton to act as the agent for the purpose of exchanging the Merger Consideration for the Certificates representing the shares of Wilton Common Stock (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent On and after the Effective Time, BNC or Bank shall make available to deposit with the Exchange Agent, as needed, sufficient cash to pay the applicable Siebel Merger Consideration to be issued or paid that is payable in respect of all of the shares of Wilton Common Stock represented by the Certificates (the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.1(d), BNC and Bank shall take all steps necessary to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and BNC and the Uncertificated SharesSurviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Shares for the Merger Consideration. Promptly after the Effective Time, Parent BNC shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Wilton Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Wilton Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittal, or (ii) receipt of an “agent’s message” transmittal and such other documents as may reasonably be requested by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawAgent. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in this Section 2.2, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel All Merger Consideration is to be paid to a Person other than upon the Person surrender of Certificates in whose name accordance with the surrendered Certificate or the transferred Uncertificated Share is registered, it terms hereof shall be a condition deemed to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After in full satisfaction of all rights pertaining to the shares of Wilton Common Stock formerly represented by such Certificate, and from and after the Effective Time, there shall be no further registration of or transfers of shares of Siebel StockWilton Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article II.
(ed) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Stock six Shares twelve (12) months after the Effective Time shall be returned to Parent BNC, upon demand, and any such holder who has not exchanged shares of Siebel Wilton Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.2 prior to that time shall thereafter look only to Parent BNC or Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent BNC shall not be liable to any holder of shares of Siebel Wilton Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Wilton Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawLaw, the property of Parent, BNC or Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(ge) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to ParentBNC or Surviving Corporation, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Bankwell Financial Group, Inc.)
Surrender and Payment. (a) Prior Parent shall designate a bank or trust company reasonably acceptable to the Election Record DateCompany, Parent shall appoint an pursuant to a customary agreement in form and substance reasonably acceptable to the Company, to act as the agent for the holders of Shares in connection with the Merger (the “Exchange Agent”) for to receive in trust the purpose funds to which holders of (iShares and holders of Company Stock Options shall become entitled pursuant to Sections 1.11(c) mailing and receiving Election Forms and determiningor 1.12, in accordance with this Article 3as applicable. At the Effective Time, the form of Siebel Merger Consideration Parent or Purchaser shall deposit or cause to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to deposited with the Exchange Agent, for the benefit of holders of Shares and holders of Company Stock Options the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Sections 1.11(c) or 1.12, as neededapplicable (the “Exchange Fund”) and such funds shall not be used for any other purpose. Such funds shall be invested, in customary investments, as directed by Parent, Purchaser or the applicable Siebel Merger Consideration Surviving Corporation in its sole discretion pending payment thereof by the Exchange Agent to be issued or paid in respect holders of Shares. Earnings from such investment of the Certificates Exchange Fund shall be the sole and exclusive property of Purchaser or the Uncertificated Surviving Corporation, as applicable, and no part of such earnings shall accrue to the benefit of the holders of Shares. Promptly .
(b) As soon as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each record holder of Siebel Stock at the Effective Time one or more certificates formerly representing Shares (each, a “Certificate”) (i) a letter of transmittal in form and instructions (substance reasonably acceptable to the Company, which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper actual delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration pursuant to Section 1.11(c) . Upon surrender of a Certificate for cancellation to the Exchange Agent or to such exchange; providedother agent or agents as may be appointed by Parent, that any together with such letter of transmittal and instructions transmittal, duly executed, the holder of such Certificate shall be sent entitled to holders receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and the Certificate so surrendered shall be cancelled. No record holder of Uncertificated Shares only an uncertificated Share shall be required to execute or deliver any letter of transmittal or similar document in order to receive the extent determined necessary by Oracle Merger Consideration and Parent shall cause the Exchange Agent to effect deliver the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receiveeach such record holder promptly following the Effective Time, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, in each case except as explicitly provided otherwise in this Section 1.13 or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect Section 1.14. If payment of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid made to a Person person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated any uncertificated Share is registered, it shall be a condition to such of payment that (i) either such the Certificate so surrendered shall be properly endorsed indorsed or shall be otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent have paid any transfer or and other taxes required as a result by reason of such the payment of the Merger Consideration to a Person other than the registered holder of such the Certificate surrendered or Uncertificated uncertificated Share or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have tax either has been paid or is not applicable. Parent shall cause the Exchange Agent to pay any amounts payable to holders of Shares pursuant to Section 1.11(c), and to pay any amounts payable to holders of Company Stock Options pursuant to Section 1.12, in each case as promptly as practicable following such time as such amounts become payable in accordance with the terms hereof.
(c) Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of any Certificate or Certificates or uncertificated Shares such amounts as are not payablerequired to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any other provision of applicable federal, state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent or the Surviving Corporation, such withheld amount shall be treated for all purposes of this Agreement as having been paid to the holders of the Shares in respect of which such deduction and withholding was made.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent Exchange Fund which remains undistributed to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by former stockholders of the holders of shares of Siebel Stock Company for six months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demanddemand of the Surviving Corporation, and any such holder former stockholders who has have not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior 1.13, to that time the extent applicable, shall thereafter look only to Parent the Surviving Corporation for payment of their claim for cash pursuant to Section 1.11(c) . Neither Parent, the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding Exchange Agent nor the foregoing, Parent Surviving Corporation shall not (absent manifest error) be liable to any former holder of shares of Siebel Stock Shares for any amounts paid such cash held in the Exchange Fund which is delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Law.
(e) The Merger Consideration paid in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, all rights pertaining to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.Shares
(f) No dividends or other distributions with respect to Parent Stock constituting part At the close of business on the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to day during which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable occurs, the stock transfer books of the Company shall be closed and no transfer of Shares shall thereafter be made on the date records of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesCompany.
(g) Any portion If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Siebel Merger Consideration made available Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as Parent or the Exchange Agent pursuant may direct as indemnity against any claim that may be made against them with respect to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Timesuch Certificate, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued will issue and pay in exchange for Oracle Stock in accordance with Section 251(g) of DGCLsuch lost, stolen or destroyed Certificate the Merger Consideration.
Appears in 1 contract
Surrender and Payment. (a1) Prior to WesBanco Bank Kingwood, Inc. shall serve as the Election Record Date, Parent shall appoint an paying agent (the “Exchange Agent”"PAYING AGENT") for the purpose of (i) mailing and receiving Election Forms and determining, paying the Purchase Price to the Shareholders of the Company in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) exchange for certificates representing shares of Siebel Stock (the “Certificates”) or (B) Stock. The Paying Agent shall be responsible for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available sending a notice and transmittal form to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect Shareholders of the Certificates Company advising such Shareholders of the effectiveness of the Merger and the Uncertificated Shares. Promptly after procedure for surrendering to the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery such shares for payment of the Certificates or transfer Purchase Price. The Paying Agent shall hold the funds representing the Purchase Price in trust and deliver such funds in accordance with this SECTION 1.11. The Purchaser shall have no responsibility as to any payments to the Shareholders of the Uncertificated Shares Company; its sole responsibility being to the Exchange Agent) for use make payment as set forth in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebythis Section.
(b2) Each holder of a certificate or certificates representing shares of Siebel Stock that have been which are converted pursuant to SECTION 1.9 into the right to receive a pro rata portion of the Siebel Merger Consideration shall be entitled to receivePurchase Price, upon (i) surrender to the Exchange Paying Agent of a Certificatesuch certificates for cancellation, together with any duly completed and recorded documentation, will be entitled promptly to receive a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) check representing cash in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect amount of the Siebel Purchase Price, less the Escrow Deposit, times a fraction (x) the numerator of which is the number of shares of Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration certificates and (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate y) the denominator which is requested by a holder the total number of shares of Siebel Stock or is otherwise issued and outstanding (other than shares of Stock referred to in SECTION 1.9(A)), less any amount required to be withheld under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationfederal income tax regulations.
(c3) If In the event any certificate representing shares of Stock to be exchanged for the Purchase Price has been lost, stolen or destroyed, the Paying Agent shall pay to the person claiming that such certificate has been lost, stolen or destroyed, the cash into which the shares theretofore represented by such certificate has been converted, as provided in SECTION 1.11(B), upon receipt of evidence of ownership of such certificate and appropriate indemnification, in each case satisfactory to the Paying Agent.
(4) No interest shall accrue or be paid on any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payablePurchase Price.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior Following the date hereof and prior to the Election Record DateEffective Time, Parent shall shall, at Shift’s sole cost and expense, appoint an exchange agent reasonably acceptable to Shift (the “Exchange Agent”) for to act as the purpose of exchange agent in the Merger; provided, however, that Parent shall (i) mailing afford Shift the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, shall accept Shift’s reasonable comments thereto; and (ii) exchanging not appoint an Exchange Agent prior to the applicable Siebel Effective Time in such a manner that will result in costs or expenses to Shift to be paid by Shift prior to the Effective Time or in the event that the Merger Agreement is terminated, in each case in clause (ii), absent the consent of Shift. Promptly after the appointment of the Exchange Agent, Parent shall cause the Exchange Agent to mail to each holder of record of Shift Shares entitled to receive Merger Consideration pursuant to Section 2.6, at Shift’s sole cost and expense, a letter of transmittal (Awhich shall be in the form and substance reasonably acceptable to Shift) (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates representing shares of Siebel Stock evidencing such Shift Shares, in physical or electronic form, as the case may be (the “Certificates”) in exchange for the applicable portion of Merger Consideration payable to such holder. The Exchange Agent shall (i) at or promptly following the Effective Time, issue to each holder of record of Shift Shares entitled to receive Merger Consideration pursuant to Section 2.6 that has delivered a Certificate (Btogether with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the Closing Date, the Merger Consideration with respect to such Certificate so surrendered and the Certificate shall forthwith be canceled; and (ii) following the Effective Time, with respect to any holder of record of Shift Shares entitled to receive Merger Consideration pursuant to Section 2.6 that did not receive Merger Consideration pursuant to clause (i), no later than three (3) Business Days after receipt of a Certificate (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Certificate the Merger Consideration with respect to such Certificate so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the Merger Consideration issuable to each Stockholder electronically through book entry-delivery or, upon the written request of any Stockholder, in the form of an original stock certificate to the address set forth in such Stockholder’s Letter of Transmittal. Unless otherwise provided herein, no interest shall be paid or shall accrue on any Merger Consideration payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented Shift Shares (other than Dissenting Shares, Treasury Shares and Shift Shares canceled pursuant to Section 2.6(c) hereof) shall be deemed from and after the Effective Time, for uncertificated shares all purposes, to evidence the right to receive the portion of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall make available If after the Effective Time, any Certificate is presented to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery it shall be effected, canceled and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use exchanged as provided in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Sharethis Section 2.11(a). The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred transfer, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(db) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, No dividends or other distributions declared or made after the Effective Time, Certificates or Uncertificated Shares are presented Time with respect to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance Parent Common Stock with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months a record date after the Effective Time shall be returned paid to the holder of any unsurrendered Certificate with respect to the Parent upon demandCommon Stock issuable to such holder hereunder in consideration for the surrender of such Certificate until the holder of such Certificate shall surrender such Certificate. Subject to the effect of escheat, tax or other applicable Laws, following surrender of any such Certificate, there shall be paid to the holder of the certificates representing shares of Parent Common Stock issued in exchange therefor, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Parent Common Stock, and any (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such holder who has not exchanged whole shares of Siebel Stock for the Siebel Parent Common Stock.
(c) Any Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two Stockholders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(fd) No dividends If any Certificate shall have been lost, stolen or other distributions with respect destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to Parent Stock constituting part be lost, stolen or destroyed and, if required by Shift or the Exchange Agent, the posting by such Person of the Siebel Merger Considerationa bond, and no cash payment in lieu of fractional shares such reasonable amount as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferredShift may direct, as the case indemnity against any claim that may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender made against it with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective TimeCertificate, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued issue, in exchange for Oracle Stock such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the Shift Shares formerly represented by such Certificate in accordance with Section 251(g) of DGCLthis Agreement.
Appears in 1 contract
Surrender and Payment. (a) The following procedures shall apply to Elections made pursuant to Sec-
(a) (i):
(i) Parent shall prepare a form reasonably acceptable to the Company (the “Election Form”), which shall be mailed by the Company to record holders of Company Stock and holders of Vested Company Stock Options and Director RSUs (as such terms are defined in Section 2.04) so as to permit those holders to exercise their right to make an Election prior to the Election Deadline and which shall specify, among other things, the Election Deadline and the consequences of failing to meet the Election Deadline.
(ii) Prior to the Election Record Mailing Date, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing receiving Elections and receiving Election Forms ex- changing for the applicable Company Cash Consideration and determining, New Charter Merger Con- sideration (in accordance with this Article 3, respect of the form of Siebel applicable Company Stock Merger Consideration that shall be deemed to be received by each holder automatically surrendered for exchange upon the Second Company Merger Effective Time) (as well as cash in lieu of fractional shares of Siebel StockNew Charter Com- pany Stock as specified in Section 2.07) (A) certificates representing shares of Company Stock (the “Company Certificates”) and (B) uncertificated shares of Company Stock (the “Company Uncertificated Shares”), and (ii) exchanging for the applicable Siebel Parent Merger Consideration and cash in lieu of fractional shares of New Charter Company Stock as specified in Section 2.07 (A) for certificates representing shares of Siebel Parent Class A Common Stock (the “Parent Certificates” and, together with the Company Certificates, the “Cer- tificates”) or and (B) for uncertificated shares of Siebel Parent Class A Common Stock (the “Parent Uncertificated Shares” and, together with the Company Uncertificated Shares, the “Un- certificated Shares”).
(iii) The Company shall mail or cause to be mailed or delivered, as ap- plicable, not less than 20 Business Days prior to the anticipated Election Deadline (the “Mailing Date”) an Election Form to record holders of Company Stock as of the close of business on the tenth (10th) Business Day prior to the Mailing Date (the “Election Form Record Date”). Parent The Company shall make available one or more Election Forms as may reasonably be requested from time to time by all persons who become holders or benefi- cial owners of Company Stock during the period following the Election Form Record Date and prior to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent Election Deadline.
(iv) Any Election shall send, or shall cause have been made properly only if the Exchange Agent shall have received, by the Election Deadline, an Election Form properly complet- ed and signed and accompanied by Company Certificates to sendwhich such Election Form relates, to each record holder of Siebel Stock at duly endorsed in blank or otherwise in form acceptable for transfer on the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery books of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; providedCompany and, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Company Uncertificated Shares, the Siebel Merger Consideration any additional doc- uments specified in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
the Election Form. As used herein, unless otherwise agreed in advance by the Company and Parent, “Election Deadline” means 5:00 p.m. local time (e) Any portion in the city in which the principal office of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(ais located) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date that Parent and the Company shall agree is five (5) Business Days prior to the expected Closing Date. The Company and Parent shall issue a press release reasonably satisfactory to each of such surrender with respect them announcing the anticipated date of the Election Deadline not more than 20 Business Days before, and at least five Business Days prior to, the Election Deadline. If the Closing is delayed to such securities and (ii) at the appropriate payment a subsequent date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected Election Dead- line shall be returned similarly delayed to Parent, upon demand.
a subsequent date (h) Certificates representing shares of Oracle Stock immediately which shall be the fifth Business Day prior to the Initial Effective Time shall, from Closing Date) and after the Initial Effective Time, represent the shares of Company and Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock cooperate to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLpromptly pub- licly announce such rescheduled Election Deadline and Closing.
Appears in 1 contract
Sources: Merger Agreement
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or and (Bii) for uncertificated shares of Siebel Company Common Stock (the “Uncertificated Shares”). As of the Effective Time, Parent shall make available to deposit with the Exchange Agent, as needed, Agent the applicable Siebel aggregate Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares that are not Company Restricted Stock Awards (the “Payment Fund”). The Payment Fund shall be invested in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under Section 2.03, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receivereceive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may bebe by this Section 2.04, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate or Uncertificated Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article 2, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Uncertificated Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Uncertificated Shares and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six months one (1) year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares 2.05 in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging for the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated ;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Siebel Stock (the “Uncertificated Shares”Company Common Stock). At or prior to the Effective Time, Parent shall make available deposit, or cause to be deposited, with the Exchange Agent, as needed, Agent the applicable Siebel aggregate Merger Consideration to be issued or paid in respect of the Certificates (the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent and the Uncertificated SharesSurviving Corporation shall promptly replace or restore the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. Promptly As promptly as practicable after the Effective Time, and in any event no later than five (5) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, send to each record holder of Siebel shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificates to the Exchange AgentAgent and which shall be in such form and shall contain such other provisions as Parent and the Company shall mutually agree) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCompany Common Stock. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, Time there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Mac-Gray Corp)
Surrender and Payment. (a) Prior At or prior to the Election Record Dateanticipated Effective Time, Parent the Buyer Parties shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, exchanging shares of Common Stock for Merger Consideration in accordance with this Article 3, the form of Siebel Merger Consideration III. Prior to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause and the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time Company will develop and finalize a letter of transmittal which shall be in customary form and instructions have such other provisions as to which Parent and the Company may reasonably agree (which letter of transmittal shall specify that the delivery of the Merger Consideration shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer applicable share certificates to the Exchange Agent if the applicable shares of Common Stock are certificated) (the Uncertificated Shares “Letter of Transmittal”) for use in effecting delivery of shares of Common Stock to the Exchange Agent. No later than 15 Business Days prior to the anticipated Closing Date, the Buyer Parties shall cause the Exchange Agent to send to each holder of record of shares of Common Stock as of the Effective Time, a Letter of Transmittal, together with instructions for effecting the surrender of shares of Common Stock in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Parent and Buyer shall deposit, or shall cause to be deposited, with the Exchange Agent, in trust for use the benefit of the holders of shares of Common Stock (other than any Cancelled Shares), Net Option Shares, and Net RSU Shares, for exchange in accordance with this Article III, evidence of book entry shares or awards to the extent possible or in the alternative shares in certificated form representing the number of Parent Shares and an amount of cash, in each case, sufficient to pay to the holders of shares of Common Stock the aggregate Per Share Cash Consideration and the aggregate Per Share Equity Consideration (such exchangeParent Shares and cash, together with cash in lieu of fractional shares in accordance with Section 3.4 and any dividends or distributions with respect to the Parent Shares in accordance with Section 3.3(h), being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 3.3(a) in exchange for outstanding shares of Common Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 3.1 out of the Exchange Fund. Except as specified in this Section 3.3, the Exchange Fund shall not be used for any other purpose. At the election of Parent, Parent may pay the cash value of the Per Share Equity Consideration (based on the Parent VWAP) that would otherwise be issued to a Seller that is a non-accredited investor. If a Seller delivers, no later than 2 Business Days prior to the anticipated Closing Date, a properly completed letter of transmittal surrendering such Seller’s shares of Common Stock effective as of the Closing, Parent and EHSI shall cause the Exchange Agent to pay the Merger Consideration in respect of such Seller’s shares of Common Stock at the Closing.
(c) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis in (i) short term direct obligations of the United States of America with maturities of no more than thirty (30) days or (ii) short term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Common Stock pursuant to this Article III. If for any such letter of transmittal and instructions reason (including losses) the cash in the Exchange Fund shall be sent insufficient to holders fully satisfy all of Uncertificated Shares only the payment obligations to the extent determined necessary be made in cash by Oracle and the Exchange Agent hereunder, Parent and EHSI shall promptly deposit cash into the Exchange Fund in an amount which is equal to effect the transactions contemplated herebydeficiency in the amount of cash required to fully satisfy such cash payment obligations.
(bd) Each holder of shares of Siebel Stock Common Stock, Net Option Shares, or Net RSU Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificate, properly completed and validly executed Letter of Transmittal (together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or certificates representing such other evidencesecurities, if any, of transfer as the Exchange Agent may reasonably request) in accordance with the case of a book-entry transfer of Uncertificated Sharesinstructions thereto, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate and such other documents as may be required pursuant to such instructions, will be entitled to receive (i) one or Uncertificated Share. The shares of more Parent Stock constituting part of such Siebel Merger Consideration Shares (if any), at Parent’s option, which shall be in uncertificated book-book entry form to the extent possible or in the alternative shares in certificated form) representing, unless a physical certificate is requested in the aggregate, the whole number of Parent Shares that such holder has the right to receive pursuant to Section 3.1; and (ii) by a wire transfer of immediately available funds an amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 3.1 and the other provisions contained in this Article III, including cash payable in lieu of fractional shares in accordance with Section 3.4 and dividends and other distributions in accordance with Section 3.3(h). No interest shall be paid or accrued on any Merger Consideration, cash payable in lieu of Siebel Stock fractional shares in accordance with Section 3.4 or is otherwise required under applicable lawdividends and other distributions in accordance with Section 3.3(h). Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent share of Common Stock shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel the Merger Consideration, cash payable in lieu of fractional shares in accordance with Section 3.4 and dividends and other distributions in accordance with Section 3.3(h).
(ce) If any portion of the Siebel Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share share of Common Stock is registered, it shall be a condition to of such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay pay, or cause to the Exchange Agent be paid, any transfer or other taxes Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of the surrendered share of Common Stock, or required for any other reason relating to such Certificate holder or Uncertificated Share requesting Person, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered share of Common Stock is registered, it shall be a condition to the registration thereof that the surrendered share of Common Stock shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration shall pay, or cause to be paid, to the Exchange Agent any transfer or other Taxes required as a result of such registration in the name of a Person other than the registered holder of such share of Common Stock or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(df) After At the Effective Time, the share transfer books of the Company shall be closed and thereafter, there shall be no further registration of transfers Transfers of shares of Siebel Company Common Stock. From and after the Effective Time, the holders of shares of Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Common Stock except the right to receive the consideration provided for, and in accordance with the procedures set forth, in this Article III or as otherwise provided herein or by applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares certificates representing shares of Common Stock are presented to the Siebel Exchange Agent, the Surviving CorporationCorporation or Parent, they such certificates shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(eg) Any portion of the Siebel Merger Consideration made available by Parent to Exchange Fund (including the Exchange Agent pursuant to Section 3.10(aproceeds of any investments thereof) that remains unclaimed by undistributed to the holders of shares of Siebel Common Stock six months one (1) year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged his, her or its shares of Siebel Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.3 prior to that time shall thereafter look only to Parent or Buyer for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereonholder’s shares. Notwithstanding the foregoing, Parent neither Parent, Buyer, Merger Sub, the Company nor the Surviving Corporation shall not be liable to any holder of shares of Siebel Company Common Stock for any Merger Consideration or other amounts paid delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(fh) No dividends or other distributions with respect to Parent Stock constituting part of Shares issued in the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or unsurrendered shares of any Uncertificated Shares not transferred Common Stock until such Certificates or Uncertificated Shares shares of Common Stock are surrendered or transferred, as the case may be, as provided in this SectionSection 3.3. Following such surrender surrender, subject to the effect of escheat, Tax or transferother applicable Law, there shall be paid, without interest, to the Person record holder of the Parent Shares issued in whose name the securities of Parent have been registered, exchange therefor (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends and other distributions payable in lieu respect of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Parent Shares with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and not previously paid and (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to such Parent Shares with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender such surrender. For purposes of dividends or transfer payable with other distributions in respect of Parent Shares, all Parent Shares to such securitiesbe issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(gi) Any portion of the Siebel Merger Consideration made available to deposited with the Exchange Agent pursuant to this Section 3.10(a) or Section 3.11 3.3 to pay for shares of Siebel Stock Dissenting Shares for which appraisal rights shall have been perfected shall be returned to Parent, Parent or Buyer upon demandthe settlement or final and non appealable adjudication of any claim for appraisal rights asserted with respect to such Dissenting Shares.
(hj) Certificates representing shares All Merger Consideration issued and paid to a holder of Oracle Company Common Stock immediately prior to upon conversion of the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 251(g3.3(h) or Section 3.4) shall be deemed to have been issued and paid in full satisfaction of DGCLall rights pertaining to such Common Stock.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateFirst Effective Time, Parent and Bidco shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) mailing Certificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the First Effective Time, in consideration of and receiving Election Forms in exchange for the issuance to Parent by Bidco of ninety-five (95) shares of common stock of Bidco and determiningthe Cancellation, Parent shall (i) allot American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Parent ADSs issuable pursuant to Section 2.03(a), (ii) pay the cash amount payable pursuant to Section 2.03(a) in accordance with the terms of Section 2.03(a) and the following provisions of this Section 2.06(a) and (iii) cause the payment of any Vested Option Consideration or Vested Award Consideration (as applicable) in accordance with the terms of Section 2.08. As of the First Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 2.06 through the Exchange Agent, (x) American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Parent ADSs issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the aggregate cash amount payable pursuant to Section 2.03(a). Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as neededneeded additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.06(f) and cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.10, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharesas applicable. Promptly after the First Effective TimeTime (and in no event more than two Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at as of immediately prior to the First Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the First Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund”. Parent shall cause, or shall procure that Bidco cause, the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or Bidco; provided, that any such letter of transmittal and instructions cash shall only be sent invested in the manner provided in the Exchange Agent Agreement; provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Uncertificated Shares only Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests and, to the extent determined necessary by Oracle and to pay the Merger Consideration, Parent shall promptly cause, or shall procure that Bidco cause, to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to effect receive such consideration in the transactions contemplated herebyamount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent on termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon on (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and duly executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, (A) the Siebel Merger Consideration in respect of each share of the Siebel Company Common Stock represented by a such Certificate or Uncertificated ShareShare and (B) cash in lieu of any fractional Parent ADSs and any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable. The shares Parent ADSs constituting any of Parent Stock constituting part of such Siebel the Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate American depository receipt evidencing such Parent ADSs is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or cash in lieu of any fractional Parent ADSs or any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any stamp duty, stamp duty reserve tax, transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes stamp duty, stamp duty reserve tax, transfer or similar Taxes have been paid or are not payable.
(d) After From and after the First Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the First Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel First Surviving Corporation, the Surviving Company or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration (and cash in lieu of any fractional Parent ADSs and any dividends and distributions as contemplated by Section 2.06(f) and Section 2.10, as applicable) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Article II (including this Section 3.102.06).
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six 12 months after following the Effective Time Closing Date shall be returned delivered to Parent upon demandor as otherwise instructed by Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.05 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, Consideration (and cash in lieu of any fractional Parent ADSs and any dividends and distributions with respect theretoas contemplated by Section 2.06(f) and Section 2.10, in respect of such shares as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including Bidco, the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates, along with the delivery of a properly completed and duly executed letter of transmittal, or the transfer of any Uncertificated Shares, in each case as provided in this Section 2.06, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the Parent ADSs constituting all or part of the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional amounts of Parent ADSs to which such Person is entitled pursuant to Section 2.10, and (y) the aggregate amount of all dividends or other distributions payable with respect to such Parent ADSs, with a record date on or after the First Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole Parent ADSs constituting all or part of the Merger Consideration with a record date on or after the First Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to Parent Stock ADSs constituting all or part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in pursuant to Section 3.112.10, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates are surrendered and the holder thereof delivers a properly completed and duly executed letter of transmittal or such Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities2.06.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, Certificates and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares Book-Entry Shares. Promptly after the Effective Time, Parent or one of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent its Affiliates shall make available to the Exchange Paying Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid aggregate Closing Amount payable in respect of all the Shares converted in accordance with Section 3.02(a) and represented by the Certificates and the Uncertificated SharesBook-Entry Shares (such cash, the “Consideration Fund”). Promptly For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. In the event the Consideration Fund shall be insufficient to pay the aggregate Closing Amount (including on account of any Closing Amount returned to Parent pursuant to Section 3.03(h)) or any Closing Amount becomes payable after a holder of Shares fails to perfect, waives, withdraws or otherwise loses the right to appraisal under Section 262 of the DGCL, Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount equal to the deficiency required to make such payments. The Consideration Fund shall not be used for any other purpose.
(b) With respect to Certificates, promptly (and in any event not later than the third (3rd) Business Day) after the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock at record of each such Certificate (i) a notice advising such holder of the Effective Time effectiveness of the Merger, (ii) a letter of transmittal and instructions (which shall specify in customary form specifying that the delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon proper delivery of the Certificates Certificate (or transfer affidavit of the Uncertificated Shares loss in lieu of a Certificate as provided in Section 3.10) to the Exchange AgentPaying Agent (a “Letter of Transmittal”) and (iii) instructions for use surrendering a Certificate (or affidavit of loss in such exchange; provided, that any such letter lieu of transmittal and instructions shall be sent to holders of Uncertificated Shares only a Certificate as provided in Section 3.10) to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) Paying Agent. Upon surrender to the Exchange Paying Agent of a Certificate, Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) together with a properly duly executed and completed letter Letter of transmittal, or (ii) receipt of an “agent’s message” Transmittal and such other documents as may reasonably be required by the Exchange Paying Agent (or pursuant to such other evidenceinstructions, if any, of transfer Parent shall cause the Paying Agent to pay and deliver as promptly as practicable after the Exchange Agent may reasonably request) in Effective Time the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock Closing Amount payable for each Share represented by a such Certificate or Uncertificated Sharepursuant to Section 3.02(a). The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, Any Certificate that has been so surrendered shall be in uncertificated book-entry form, unless a physical certificate is requested cancelled by a holder of shares of Siebel Stock or is otherwise required under applicable lawthe Paying Agent. Until so surrendered or transferred, as the case may be, and subject to the terms of Section 3.04, each such Certificate or Uncertificated Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or shall accrue on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Shares.
(c) If With respect to Book-Entry Shares, Parent shall cause the Paying Agent to pay and deliver the Closing Amount payable therefor pursuant to Section 3.02(a), in each case promptly after the Effective Time and upon surrender thereof to the Paying Agent by receipt of an “agent’s message” in customary form (or such other evidence of transfer, if any, as the Paying Agent may reasonably request). The Company and Parent shall cooperate to, and Parent shall cause the Paying Agent to, (i) deliver to DTC or its nominees, or to holders of Book-Entry Shares, in each case to the extent applicable or required, any notice with respect to the effectiveness of the Merger and any instructions for surrendering Book-Entry Shares and (ii) establish procedures with the Paying Agent and DTC to ensure that the Paying Agent will transmit to DTC or its nominees as soon as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures, the Closing Amount payable for each such Book-Entry Share pursuant to Section 3.02(a).
(d) With respect to any Certificate or Book-Entry Share, if any portion of the Siebel Merger Consideration (including payment in the form of or with respect to any CVR) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Book-Entry Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer Taxes required to be paid by the Paying Agent, Parent or other taxes required their respective Affiliates as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Book-Entry Share or establish to the satisfaction of the Exchange Paying Agent and Parent that such taxes have Tax has been paid or are is not payable.
(de) After Until disbursed in accordance with this Agreement, the cash in the Consideration Fund will be invested by the Paying Agent as directed by Parent; provided that (i) no such investment or losses thereon shall affect the Closing Amount payable to the holders of Shares and (ii) following any such losses or events that result in the Consideration Fund becoming not immediately available or that result in the amount of funds in the Consideration Fund being insufficient to promptly pay the portion of the aggregate Closing Amount that remains unpaid, Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Shares to the extent of such insufficiency. Any interest and other income resulting from such investments shall be paid solely to Parent.
(f) From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving CorporationCorporation or the Paying Agent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 3 and the CVR Agreement.
(eg) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(aFund (and any earnings, interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock Shares six months after the Effective Time shall be returned to Parent or one of its Affiliates, upon demand, and any such holder who has not exchanged shares of Siebel Stock its Shares for the Siebel Merger Consideration Closing Amount in accordance with this Section 3.10 3.03 prior to that time shall thereafter look only to Parent (subject to abandoned property, escheat or similar laws), as general creditors thereof, for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Closing Amount in respect of such shares Shares without any interest thereon. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of shares of Siebel Stock Shares for any amounts paid to a public official Governmental Authority pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (If any Certificate or such earlier date, Book-Entry Share has not been surrendered immediately prior to such time when the amounts date on which the Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Entity) shall becomeAuthority, any such Merger Consideration in respect of such Certificate or Book-Entry Share shall, to the extent permitted by applicable lawLaw, immediately prior to such time become the property of Parent, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(gh) Any portion of the Siebel Merger Consideration Closing Amount made available to the Exchange Paying Agent pursuant to Section 3.10(a3.03(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent, Parent or one of its Affiliates upon demand.
(hi) All Merger Consideration paid upon the surrender of Certificates representing shares or transfer of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock Book-Entry Shares in accordance with Section 251(g) the terms hereof shall be deemed to have been paid in full satisfaction of DGCLall rights pertaining to the Shares formerly represented by such Certificate or Book-Entry Shares.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall the Company will appoint an Citibank N.A. as the depository agent (the “Exchange Depository Agent”) and Epiq Corporate Restructuring as the paying agent (the “Paying Agent” and such agreement, in form and substance reasonably acceptable to the Company and the Buyer after the date hereof, entered into among the Company, the Depository Agent and the Paying Agent), the “Paying Agent Agreement”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging Units for the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available consideration payable pursuant to this ARTICLE 2 and making payments to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebySellers.
(b) Following the Effective Time, each Unitholder will be entitled to receive, after submitting to the Paying Agent his, her or its properly completed letter of transmittal, in the form of Exhibit L attached hereto (the “Transmittal Documents”) for each such Unit held by such Unitholder (other than Excluded Units and Rollover Units) the consideration provided for in Section 2.04 payable in the manner and at the times set forth in this Agreement. Each holder of shares of Siebel Stock that have been converted into Unit shall be deemed at any time after the Effective Time to represent only the right to receive upon delivery of the Siebel Transmittal Documents, such portion of the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement. Following the Effective Time, each Optionholder shall be entitled to receive, after submitting to the Company his or her properly completed Option Cancellation Agreement, such portion of the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement. Each Option shall be deemed at any time after the Effective Time to represent only the right to receive upon delivery of the Option Cancellation Agreement, such portion of the Aggregate Closing Merger Consideration and Additional Consideration as may be required pursuant to this Agreement.
(c) No later than five Business Days prior to the date on which the Closing is scheduled to occur, the Company will send or the Company and Parent shall direct the Paying Agent to electronically send to each Unitholder the Transmittal Documents for use in connection with the Contemplated Transactions. Subject to Section 2.04, Section 2.06(e) and this Section 2.07(c), the Company will direct (and the Surviving Company will cause) the Paying Agent to pay to each Unitholder by wire transfer of immediately available funds the portion of the Aggregate Closing Merger Consideration payable to such Unitholder as set forth in the Payment Allocation Schedule, (i) surrender immediately following the Effective Time if such Unitholder has delivered to the Exchange Agent of a CertificatePaying Agent, at least three (3) Business Days prior to the Closing Date, properly executed Transmittal Documents and wire transfer instructions, together with a properly completed letter of transmittalsuch other documents as may reasonably be required by the Paying Agent, or (ii) otherwise within three (3) Business Days after the date of receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of required deliveries from such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payableUnitholder.
(d) After the Effective Time, there shall will be no further registration of transfers of shares of Siebel StockUnits. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Aggregate Closing Merger Consideration made available by Parent to the Exchange Depositary Agent and Paying Agent pursuant to Section 3.10(a2.07(a) that remains unclaimed by the holders of shares of Siebel Stock six months Sellers one year after the Effective Time shall will be returned to Parent upon demandthe Surviving Company, and any such holder Unitholder who has not exchanged shares of Siebel Stock its Units for the Siebel applicable portion of the Aggregate Closing Merger Consideration in accordance with this Section 3.10 prior to that such time shall and any other Seller who has not otherwise received such Seller’s portion of the Aggregate Closing Merger Consideration, will thereafter look only to Parent the Surviving Company for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares thereof without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Additional Consideration made available to the Exchange Depositary Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares and Paying Agent that remains unclaimed by the Sellers one year after the date of Siebel Stock for which appraisal rights have been perfected shall such deposit will be returned to Parentthe Surviving Company, upon demand.
(h) Certificates representing shares and any Unitholder who has not exchanged its Units or any other Seller who has otherwise not received such Seller’s applicable portion of Oracle Stock immediately Additional Consideration prior to such time will thereafter look only to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding Surviving Company for payment thereof without any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLinterest thereon.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Surrender and Payment. (a) Prior to the Election Record Date, Parent shall appoint an agent (the “"Exchange Agent”") for the purpose of exchanging certificates which immediately prior to the Effective Time evidenced shares of Company Common Stock (ithe "Certificates") mailing and receiving Election Forms and determiningfor the Merger Consideration. As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)II. Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Surviving Corporation or the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1(b), promptly after the Effective Time but in no event more than five (5) Business Days following the Effective Time, (i) a letter of transmittal and instructions for use in such exchange (which shall, prior to the Effective Time, be in form and substance reasonably satisfactory to Parent and the Company and shall specify that the delivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and (ii) instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebysurrender of the Certificates in exchange for the Merger Consideration.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate or Certificates, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or transmittal covering such shares and such other evidence, if any, of transfer documents as the Exchange Agent may reasonably request) in require, shall be entitled to receive as promptly as practicable the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Sharesuch shares of Company Common Stock. The shares of Parent Stock constituting part holder of such Siebel Merger Consideration (if any)Certificate, at Parent’s optionupon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(c). Certificates surrendered shall forthwith be in uncertificated book-entry form, unless a physical certificate is requested by a holder canceled as of shares of Siebel Stock or is otherwise required under applicable lawthe Effective Time. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share Certificate, following the Effective Time, shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationConsideration and any other amounts payable pursuant to Section 2.2(c).
(c) No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Parent Common Shares such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.2. Subject to applicable Laws, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing whole Parent Common Shares issued in exchange therefor, without interest, at the time of such surrender, the amount of dividends or other distributions with respect to such whole Parent Common Shares with a record date after the Effective Time and a payment date prior to such surrender.
(d) If any portion of the Siebel Merger Consideration certificate for Parent Common Shares is to be paid to issued in a Person name other than that in which the Person Certificate surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share exchange therefor is registered, it shall be a condition to such payment the issuance thereof that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment exchange shall pay have paid to the Exchange Agent any transfer or other taxes required as a result of such payment to the issuance of a Person certificate for Parent Common Shares in any name other than that in which the registered holder of such Certificate or Uncertificated Share is registered, or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable. For purposes of this Agreement, "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Hancock John Financial Services Inc)
Surrender and Payment. (a) Prior to the Election Record Date, Parent shall appoint an agent (the “Exchange Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall sendappoint U.S. Bank National Association (the “Paying Agent”) to act as paying agent in connection with the consideration to be paid to the Stockholders pursuant to a paying agent agreement among Parent, Representative and Paying Agent in reasonable form and substance (the “Paying Agent Agreement”). The Paying Agent’s fees and expenses shall be borne by Parent.
(b) At least three (3) Business Days prior to the Closing Date, Company shall deliver to Parent its good faith estimate of the Closing Merger Consideration (the “Estimated Closing Merger Consideration”), including reasonable support for its calculation of the Estimated Closing Merger Consideration. The calculation of the Estimated Closing Merger Consideration shall be prepared in accordance with GAAP applied on a basis consistent with Company’s past practices used in preparing the Financial Statements.
(c) No later than three (3) Business Days following the date hereof, Company shall deliver, or cause to be delivered, a Letter of Transmittal in a form reasonably acceptable to Parent and Company (collectively, the “Letters of Transmittal”) to the Preferred Stockholders. In the event that at any time the sum of the Preferred Stockholder Allocated Amounts exceeds the Aggregate Liquidation Preference Amount, then concurrently with or prior to the distribution to Preferred Stockholders resulting in such event, Surviving Company shall deliver, or cause to be delivered, a Letter of Transmittal to each holder of Company Common Stock that has not executed a Letter of Transmittal along with a letter explaining that such threshold has been exceeded.
(d) Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Stockholders, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and shall have no liability to any party to this Agreement or to any Stockholder for any payment reflected on, the Distribution Schedule. The Distribution Schedule shall include:
(i) the name, address (as listed in the corporate record books of Company) and, the extent provided by such Stockholder in a Letter of Transmittal, the social security number or tax identification number of each Stockholder;
(ii) the Aggregate Liquidation Preference Amount;
(iii) each Preferred Stockholder’s Proportionate Share, and each Common Stockholder’s Proportionate Share;
(iv) the Company Board’s good faith determination, with the written consent of holders of at least two-thirds of the then outstanding shares of the Senior Preferred, of the value of each component of the Aggregate Merger Consideration as of the Effective Time;
(v) the Preferred Per Share Merger Consideration for each series of Company Preferred Stock and the Common Per Share Merger Consideration for the Company Common Stock;
(vi) the allocation of the Aggregate Merger Consideration among the Stockholders, determined in accordance with the Company Charter as in effect as of immediately prior to the Effective Time, including the allocation of any Closing Cash Consideration and the number of Parent Shares issuable to each Stockholder pursuant to Section 1.4 and Section 1.5(e);
(vii) a schedule of MIP Payments to be made at the Closing, as well as a schedule setting forth the allocation of any Escrow Distributions, Reserve Distributions, and Earnout Payments payable to Participants as MIP Payments;
(viii) the number of shares (separated by class and series) of Company Stock; and
(ix) certificate prefix(es) and certificate number(s) for Company Stock.
(e) At the Closing, Parent shall deliver or pay, or shall cause the Exchange Agent Surviving Company to senddeliver or pay, to each record holder in cash by wire transfer of Siebel Stock at immediately available funds, the Effective Time a letter balance of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery amounts of the Certificates or transfer of Indebtedness identified on the Uncertificated Shares “Indebtedness Pay-Off Schedule” and outstanding Stockholder Transaction Expenses identified on the “Stockholder Transaction Expenses Schedule”, each delivered to Parent by Company at least three (3) Business Days prior to the Exchange Agent) for use in such exchange; providedClosing Date, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.as follows:
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender all amounts necessary to fully discharge the then-outstanding balances of the Indebtedness identified on the Indebtedness Pay-Off Schedule shall be paid on behalf of Company to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, applicable creditors’ accounts set forth in the Pay-Off Letters or as otherwise advised by such creditors in writing; and
(ii) receipt all amounts necessary to fully discharge the then-outstanding balances of an “agent’s message” Stockholder Transaction Expenses identified on the Stockholder Transaction Expenses Schedule shall be paid on behalf of Company to the accounts designated by the Exchange Agent (or Persons owed such other evidence, if any, of transfer amounts as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of on the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretoStockholder Transaction Expenses Schedule.
(f) No dividends or other distributions with respect to Parent Stock constituting part Each Accredited Stockholder’s Proportionate Share of the Siebel Closing Merger Consideration shall be paid in a number of Parent Shares (rounded up to the nearest share) equal to such Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration divided by the Parent Trading Price at Signing (the “Parent Share Consideration”); provided that in the event that the aggregate of the Accredited Stockholders’ Proportionate Shares of the Closing Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11plus the Escrow Shares, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, plus the amount of any cash payable MIP Payments paid in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and Parent Shares at the Closing, exceeds $34,000,000, then the amount of all dividends such excess shall be paid in cash; provided that the aggregate of the non-Accredited Stockholders’ Proportionate Share of the Closing Merger Consideration shall be equal to or other distributions less than $3,400,000. Each non-Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration shall be paid in cash (together with a record date after any cash consideration payable to the Effective Time previously paid or payable on the date of such surrender with respect Accredited Stockholders pursuant to such securities and (ii) at the appropriate payment datethis clause, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities“Closing Cash Consideration”). “Parent Trading Price at Signing” means $15.99.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (AtriCure, Inc.)
Surrender and Payment. (a) Prior to the Election Record Date, Effective Time Parent shall appoint an agent select a nationally recognized financial institution (the “Exchange identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as Paying Agent in the Merger (the "Paying Agent”") for the purpose payment of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of each share of Company Common Stock outstanding immediately prior to the Certificates Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Uncertificated Effective Time, in each case, other than the Cancelled Shares, restricted shares pursuant to a Company Restricted Stock Award and except for any Dissenting Shares. Promptly after Prior to the Effective Time, Parent shall senddeposit or cause to be deposited (i) with the Paying Agent, or cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash shall cause be referred to in this Agreement as the "Exchange Fund"), and (ii) with the Company, cash in an amount sufficient such that the Company has sufficient cash on hand to pay the aggregate Option Consideration and RS/RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the "Compensatory Award Fund"). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional cash with the Paying Agent or the Company, as applicable, in an amount that is equal to sendthe deficiency in the amount required pay the Merger Consideration, the Option Consideration or the RS/RSU Consideration, as applicable. The Paying Agent shall, pursuant to each record holder irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 out of Siebel Stock at the Exchange Fund. The Surviving Corporation or an Acquired Company, as applicable, shall pay through payroll (subject to withholding and deductions required by Applicable Law) the Option Consideration and RS/RSU Consideration contemplated to be paid pursuant to Section 3.05 out of the Compensatory Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any other purpose.
(b) As soon as reasonably practicable after the Effective Time and in any event not later than the second (2nd) Business Day following the Effective Time, Parent will cause the Paying Agent to send to each holder of record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) or Book-Entry Shares, as applicable, to the Exchange Paying Agent) in such form as Parent and the Company may reasonably agree, for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder effecting delivery of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a CertificatePaying Agent, together with a properly completed letter of transmittal, or and (ii) receipt instructions for use in effecting the surrender of an “agent’s message” by the Exchange Agent Certificates (or such other evidence, if any, effective affidavits of transfer as the Exchange Agent may reasonably requestloss in lieu thereof) in the case of a bookor Book-entry transfer of Uncertificated Entry Shares, as applicable, in exchange for the Siebel Merger Consideration in respect of such form as Parent and the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case Company may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationreasonably agree.
(c) If Upon the surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor and Parent shall cause the Paying Agent to pay in exchange therefor, as promptly as practicable (but in any portion event within two (2) Business Days), the Merger Consideration pursuant to the provisions of this Article III, and the Certificates or Book-Entry Shares surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Siebel Company, payment of the appropriate amount of Merger Consideration is to may be paid made to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Book-Entry Share so surrendered is registered, it shall be a condition to such payment that (i) either if such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay pay, or cause to the Exchange Agent be paid, any transfer or other taxes Taxes required as a result by reason of such the payment to a Person other than the registered holder of such Certificate or Uncertificated Book-Entry Share or establish to the satisfaction of the Exchange Agent Parent that such taxes have Tax has been paid or are is not payableapplicable. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.
(d) After Prior to the Effective Time, there Parent and the Company shall be no further registration of transfers cooperate to establish procedures with the Paying Agent and the Depository Trust Company ("DTC") to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Siebel Stock. If, after the Effective Time, Certificates Company Common Stock held of record by DTC or Uncertificated Shares are presented such nominee immediately prior to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for multiplied by the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of (such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable lawamount, the property of Parent"DTC Payment"), free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at if the appropriate payment dateClosing occurs after 2:00 p.m. Eastern time on the Closing Date, the amount of dividends Paying Agent will transmit to DTC or other distributions with a record date its nominee on the first (1st) Business Day after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made Closing Date an amount in cash in immediately available funds equal to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demandDTC Payment.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Alcatel shall appoint The Bank of New York or an agent mutually agreed by Alcatel and Lucent (the “"Exchange Agent”) "), pursuant to an agreement in form and substance reasonably acceptable to Alcatel and Lucent for the purpose of exchanging certificates representing Shares (the "Certificates") for the Merger Consideration and any dividends payable pursuant to Section 1.03(f). At the Effective Time, Alcatel shall: (i) mailing and receiving Election Forms and determiningdeposit, in accordance with this Article 3, the form of Siebel Merger Consideration or cause to be received by each holder deposited, with Societe Generale, as custodian and agent of shares The Bank of Siebel StockNew York, as depositary for the ADSs, or any successor depositary thereto (the "Depository"), a number of Alcatel Ordinary Shares equal to the aggregate number of ADSs to be issued as Merger Consideration; and (ii) exchanging deposit, or cause to be deposited, with the applicable Siebel Merger Consideration Exchange Agent the receipts representing such aggregate number of ADSs, in each of cases (Ai) and (ii), for certificates representing shares the benefit of Siebel Stock (the “Certificates”holders of Shares which are converted into the right to receive ADSs pursuant to Section 1.02(a)(iii) or (B) for uncertificated shares of Siebel Stock (this Agreement. To the “Uncertificated Shares”). Parent extent required, Alcatel shall make available cause the Exchange Agent to requisition from the Depository, from time to time, such number of ADSs as are issuable in respect of Shares to be properly delivered to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall Alcatel will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel Stock record at the Effective Time of Shares a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer to the Exchange Agent) in such form as Lucent and Alcatel may reasonably agree, for use in effecting delivery of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided. Following the Effective Time, that any such letter of transmittal and instructions shall be sent Alcatel agrees to holders of Uncertificated Shares only make available to the extent determined Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 1.03(f). At and after the Effective Time, Alcatel will take all actions necessary by Oracle and to cause the Exchange Agent delivery of Alcatel Ordinary Shares or ADSs, as applicable upon the exercise or conversion at or after the Effective Time of any option referred to effect the transactions contemplated herebyin Section 1.04, any Lucent Warrant, any Lucent Stock-Based Account or Lucent Convertible Debt.
(b) Each holder of shares of Siebel Stock Shares that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate representing Shares (or effective affidavits of loss in lieu thereof in accordance with the procedures set forth in Section 1.08) or non-certificated Shares represented by book-entry ("Book-Entry Shares"), together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by will be entitled to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by such Shares (including cash payable in lieu of fractional shares pursuant to Section 1.06), and any dividends payable pursuant to Section 1.03(f). Until a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)is so surrendered, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time for all purposes Time, only represent the right to receive such Siebel Merger ConsiderationConsideration and any dividends payable pursuant to Section 1.03(f) (in each case without interest thereon).
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to Alcatel or the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, and any dividends payable pursuant to Section 1.03(f), in accordance with the procedures set forth in provisions of this Section 3.10Article I. In no event shall any interest be payable with respect to the Merger Consideration or any such dividends.
(e) Any portion of the Siebel Merger Consideration Consideration, or dividends payable pursuant to Section 1.03(f), made available by Parent to the Exchange Agent pursuant to Section 3.10(a1.03(a) that remains unclaimed by the holders of shares of Siebel Stock six Shares twelve (12) months after the Effective Time shall be returned to Parent Alcatel, upon demand, and any such holder who has not exchanged shares of Siebel Stock his Shares for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent Alcatel for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereonhis Shares. Notwithstanding the foregoing, Parent Alcatel shall not be liable to any holder of shares of Siebel Stock Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two Shares three years after the Effective Time (or such earlier date, date immediately prior to such time when the as such amounts would otherwise escheat to or become the property of any Governmental Entitygovernmental entity) shall becomeshall, to the extent permitted by applicable law, become the property of Parent, Alcatel free and clear of any Liens (as defined in Section 3.04), claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of ADSs (or the Siebel underlying Alcatel Ordinary Shares) issued in the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Book-Entry Shares not transferred until such Certificates or Uncertificated Book-Entry Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 1.03. Following Subject to applicable law, following such surrender or transfersurrender, there shall be paid, without interest, to the Person record holder of the ADSs issued in whose name the securities of Parent have been registered, exchange for such Certificates or Book-Entry Shares (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends and other distributions payable in lieu respect of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions ADSs with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and which were not previously paid, and (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to such ADSs with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender such surrender. For purposes of dividends or transfer payable with other distributions in respect of ADSs, all ADSs to such securities.
(g) Any portion of the Siebel Merger Consideration made available be issued pursuant to the Exchange Agent Merger (excluding ADSs (and underlying Alcatel Ordinary Shares) issuable upon exercise of options which are issued pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately 1.04 unless such options are actually exercised prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent or upon exercise of Lucent Warrants, Lucent Stock-Based Awards or Lucent Convertible Debt) shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock be entitled to be canceled dividends pursuant to Section 3.01(a)) for the shares immediately preceding sentence as if such ADSs were issued and outstanding as of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Alcatel)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an has appointed Continental Stock Transfer & Trust Company as paying agent (the “Exchange Paying Agent”) for in connection with the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration Merger. At or prior to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall sendmake available or cause to be made available to the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments of the Per Share Merger Consideration pursuant to Section 2.4 (such cash being hereinafter referred to as the “Exchange Fund”). Such funds may be invested by the Paying Agent as directed by Parent; provided that (i) no such investment or losses thereon shall affect the Per Share Merger Consideration payable hereunder, and, following any losses, Parent shall promptly provide additional funds to the Paying Agent for the benefit of the Company Stockholders in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If a holder of Dissenting Shares effectively withdraws its demand for, or fails to perfect and therefore loses its, appraisal rights pursuant to Section 262 of Delaware Law with respect to any Dissenting Shares, Parent shall make available or cause to be made available to the Paying Agent additional funds in an amount equal to the product of (A) the number of shares of Dissenting Shares for which the holder of Dissenting Shares has withdrawn its demand for, or lost its, appraisal rights pursuant to Section 262 of Delaware Law and (B) the Per Share Merger Consideration payable to such holder of Dissenting Shares.
(b) Promptly after the Effective Time (and in any event within ten days thereafter), the Surviving Corporation shall cause the Exchange Paying Agent to send, mail to each record holder of Siebel record of shares of Company Stock at the Effective Time entitled to receive any Per Share Merger Consideration pursuant to this Agreement (other than any holder of Dissenting Shares) (i) a letter of transmittal and instructions (which shall specify in customary form approved by Parent prior to the Effective Time specifying that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of certificates representing the Certificates shares of Company Stock (the “Certificates”) (or affidavits of loss and indemnity in lieu thereof as provided in Section 2.5(e)) or transfer of uncertificated shares of Company Stock (the “Uncertificated Shares Shares”) to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions shall be sent to holders for use in effecting the surrender of the Certificates (or affidavits of loss and indemnity in lieu thereof as provided in Section 2.5(e)) or the Uncertificated Shares only in exchange for the applicable Per Share Merger Consideration. Upon (A) surrender of a Certificate (or affidavit of loss and indemnity in lieu thereof as provided in Section 2.5(e)) to the extent determined necessary by Oracle and Paying Agent in accordance with the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder terms of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed such letter of transmittal, duly executed, or (iiB) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration holder of such Certificate or Uncertificated Shares shall be entitled to receive in respect exchange therefor a cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 2.7) equal to (x) the number of the Siebel shares of Company Stock represented by a such Certificate (or affidavit of loss in lieu thereof as provided in Section 2.5(e)) or Uncertificated ShareShares multiplied by (y) the applicable Per Share Merger Consideration set forth in Section 2.4(a) or Section 2.4(b), as applicable, and the Certificate so surrendered and the Uncertificated Shares so transferred shall forthwith automatically and irrevocably be cancelled and shall no longer be considered outstanding. The No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Uncertificated Shares. In the event of a transfer of ownership of shares of Parent Company Stock constituting part that is not registered in the transfer records of the Company, a check for any cash to be exchanged upon due surrender of the Certificate may be issued to such Siebel Merger Consideration transferee if the Certificate formerly representing such shares of Company Stock is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable.
(if any)c) From and after the Effective Time, at Parent’s option, there shall be no transfers on the stock transfer books of the Company of the shares of Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificate is presented to the Surviving Corporation, Parent or the Paying Agent for transfer, it shall be cancelled and exchanged for the cash amount in uncertificated book-entry form, unless a physical certificate immediately available funds to which the holder thereof is requested entitled pursuant to this Article II.
(d) Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by a the Company Stockholders for six months after the Effective Time shall be delivered to the Surviving Corporation. Any holder of shares of Siebel Company Stock (other than a holder of Dissenting Shares) who has not theretofore complied with this Article II shall thereafter look only to the Surviving Corporation as a general unsecured creditor for payment of the Per Share Merger Consideration (after giving effect to any required Tax withholdings as provided in Section 2.7) upon due surrender of its Certificates (or is otherwise required under affidavits of loss in lieu thereof) or due transfer of its Uncertificated Shares, without any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall be liable to any former holder of shares of Company Stock for any amount properly delivered to a public official pursuant to applicable law. Until so surrendered abandoned property, escheat or transferredsimilar Applicable Laws.
(e) If any Certificate shall have been lost, as stolen or destroyed, upon the case may be, each making of an affidavit of loss and indemnity (in customary and reasonable form) by the Person claiming such Certificate to be lost, stolen or Uncertificated destroyed and, if required by Parent, the posting by such Person of a bond in customary amount and upon such customary and reasonable terms as may be required by Parent as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate, a check in the amount (after giving effect to any required Tax withholdings as provided in Section 2.7) equal to the number of shares of Company Stock represented by such lost, stolen or destroyed Certificate multiplied by the Per Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(cf) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(dg) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel The Per Share Merger Consideration, Consideration paid in accordance with the procedures set forth terms hereof shall be deemed to have been issued in this Section 3.10.
(e) Any portion full satisfaction of the Siebel Merger Consideration made available by Parent all rights pertaining to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Company Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of which such shares without any interest thereonPer Share Merger Consideration was paid. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part capital stock of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesunsurrendered Certificates.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent the Company shall appoint an agent (provide Meadowbrook with a list of the “Exchange Agent”) names and addresses of each of the Company's stockholders for the purpose of (i) mailing assisting Meadowbrook in exchanging certificates which, immediately prior to the Effective Time represented issued and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of outstanding shares of Siebel StockCompany Common, and (iifor the consideration set forth in Section 2.1(c) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”"Merger Consideration"). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent Meadowbrook shall send, or shall cause the Exchange Agent to sendbe sent, to each record holder of Siebel record of shares of Company Stock at the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer certificates representing shares of the Uncertificated Shares Company Stock to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyMeadowbrook).
(b) Each holder Holders of shares of Siebel Company Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent Meadowbrook of a Certificatecertificate or certificates representing such shares of Company Stock, together with a properly completed letter of transmittaltransmittal covering such shares, or (ii) receipt of an “agent’s message” by will be entitled to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCompany Stock. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent certificate representing shares of the Company Stock shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) The Meadowbrook Common comprising the Merger Consideration shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of any liens, pledges or encumbrances of any kind except any restrictions on subsequent sale by the Securityholders imposed by any federal or state securities laws or regulations; provided however that each Securityholder hereby agrees that it shall not effect any sale of Meadowbrook Common issued pursuant to this Agreement for a period of twelve (12) months following the Effective Time.
(d) If any portion of the Siebel Merger Consideration is to be paid to a Person person other than the Person registered holder of shares of Company Stock represented by the certificate or certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it shall be a condition to such payment that (i) either such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) accompanied by all documents required to evidence and effect the Person transfer and that the person requesting such payment shall pay to the Exchange Agent Meadowbrook any transfer or other taxes required as a result of such payment to a Person person other than the registered holder of such Certificate or Uncertificated Share shares of Company Stock or establish to the satisfaction of the Exchange Agent Meadowbrook that such taxes have tax has been paid or are is not payable.
(de) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares certificates representing shares of Company Stock are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article II.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entitygovernmental entity) shall becomeshall, to the extent permitted by applicable law, become the property of Parent, Meadowbrook free and clear of any claims or interest of any Person person previously entitled thereto.
(fg) No dividends dividends, interest or other distributions with respect to Parent Stock Meadowbrook Common constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Consideration shall be paid to the holder of any Certificates not surrendered or unsurrendered certificates representing shares of any Uncertificated Shares not transferred Company Stock until such Certificates or Uncertificated Shares certificates are surrendered or transferred, as the case may be, as provided in this SectionSection 2.3. Following Upon such surrender or transfersurrender, there shall be paid, without interest, to the Person person in whose name the securities certificates representing Meadowbrook Common into which such shares of Parent have been Company Stock were converted are registered, (i) at the time all dividends, interest and other distributions payable in respect of such surrender or transfershares of Company Stock on a date subsequent to, the amount and in respect of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment dateafter, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Meadowbrook Rehabilitation Group Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank or trust company to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose payment of Merger Consideration upon surrender of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, certificates representing the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and Shares or (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Effective Time represented Shares (the “Book-Entry Shares”). Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.6(b) to holders of Shares (such amounts being hereinafter referred to as the “Exchange Fund”). For purposes of determining the amount to be so deposited, Merger Consideration Subsidiary shall assume that no stockholder of the Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (Ai) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either M▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.6(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.6(b) shall be promptly paid to Parent. Parent shall promptly replenish the Exchange Fund to the extent of any investment losses. The Exchange Fund shall not be used for any other purpose.
(b) Merger Subsidiary shall instruct the Disbursing Agent to mail promptly after the Effective Time, but in no event later than the fifth (5th) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates representing shares of Siebel Stock which immediately prior to the Effective Time represented Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (Book-Entry Shares, and whose Shares were converted into the “Uncertificated Shares”). Parent shall make available right to the Exchange Agent, as needed, the applicable Siebel receive Merger Consideration pursuant to be issued or paid in respect Section 3.6(b), a form of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer to the Disbursing Agent) and instructions for use in effecting the surrender of the Uncertificated Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration. Upon surrender of a Certificate or Book-Entry Shares to the Exchange Agent) Disbursing Agent for use in such exchange; providedcancellation, that any together with such letter of transmittal duly executed and instructions shall such other documents as may be sent to holders of Uncertificated Shares only to reasonably required by the extent determined necessary by Oracle and Disbursing Agent, the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration such Certificate or Book-Entry Shares shall be entitled to receive, upon (i) surrender to receive in exchange therefor the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share Book-Entry Shares, less any required withholding of Taxes, and such Certificate or Book-Entry Shares shall represent after forthwith be canceled. No interest will be paid or accrued on the Effective Time for all purposes only cash payable upon the right to receive such Siebel Merger Considerationsurrender of the Certificates or Book-Entry Shares.
(c) If any portion of the Siebel Merger Consideration payment is to be paid made to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Shares surrendered is registered, it shall be a condition to such of payment that (i) either such the Certificate shall or Book-Entry Shares so surrendered be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result by reason of such the payment to a Person other than the registered holder of such the Certificate or Uncertificated Share Book-Entry Shares surrendered or establish to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have Tax has been paid or are is not payableapplicable.
(d) After Until surrendered in accordance with the provisions of this Section 3.7, all Certificates and Book-Entry Shares (other than Certificates and Book-Entry Shares representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Shares held by the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the applicable Merger Consideration.
(e) At and after the Effective Time, there shall be no further registration of transfers of shares Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of Siebel Stockthe Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates or Book-Entry Shares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving CorporationCorporation for any reason, they such Certificates or Book-Entry Shares shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10closed.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At any time more than twelve (12) months after the Effective Time, the Exchange Disbursing Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares upon demand of Parent Stock constituting deliver to it any funds which had been made available to the Oracle Merger Consideration. No separate certificates shall be issued Disbursing Agent and not disbursed in exchange for Oracle Stock Certificates or Book-Entry Shares (including all interest and other income received by the Disbursing Agent in accordance respect of all such funds). Thereafter, holders of Certificates or Book-Entry Shares shall look only to the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with Section 251(g) respect to any Merger Consideration that may be payable, without interest, upon due surrender of DGCLthe Certificates or Book-Entry Shares held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book-Entry Shares for any Merger Consideration delivered in respect of such Certificate or Book-Entry Shares to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration, (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Stock (the each a “CertificatesCertificate”) or (Bii) for uncertificated shares of Siebel Company Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall make available to deposit with the Exchange Agent, as needed, for the applicable Siebel Merger Consideration to be issued or paid in respect benefit of the Certificates holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock issuable pursuant to Section 2.04 and (ii) cash in immediately available funds in an amount sufficient for the Uncertificated Sharespayment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders are entitled pursuant to Section 2.09. Promptly after the Effective TimeTime and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange; provided, that any such letter . All evidence of transmittal shares of Parent Common Stock in book-entry form and instructions cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be sent referred to holders of Uncertificated Shares only to in this Agreement as the extent determined necessary by Oracle and “Exchange Fund.” Parent shall cause the Exchange Agent to effect deliver the transactions Merger Consideration contemplated herebyto be issued or paid pursuant to this Article 2 out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel each share of Company Stock represented by a such Certificate or Uncertificated ShareShare (A) the applicable Merger Consideration and (B) any cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.06(f), as applicable. The shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any)shall, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect thereto contemplated by Section 2.09 or Section 2.06(f), as applicable) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes transfer or similar Taxes have been paid or are not payable.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Stock on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCompany or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.09 and Section 2.06(f), as applicable) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Stock six twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent or as otherwise instructed by Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel applicable Merger Consideration in accordance with this Section 3.10 Section 2.06 prior to that such time shall thereafter look only to Parent for payment of the Siebel such Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect theretothereto as contemplated by Section 2.09 and Section 2.06(f), in respect of such shares as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including, after the Closing, the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.06, and in any event within two (2) Business Days of such surrender or transfer, the Exchange Agent shall promptly pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.09, as provided in Section 3.11applicable, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesSection 2.06.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Stock in connection with the Siebel Merger Consideration made available Mergers, and the filing of any related Tax Returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe sole responsibility of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Morgan Stanley)
Surrender and Payment. (a) Prior Parent will appoint U.S. Bank National Association to the Election Record Date, Parent shall appoint an act as payment agent (the “Exchange Payment Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging certificates representing the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Immediately following the Effective Time, Parent shall will make available the Merger Consideration, less any amounts to be paid to holders of Company Stock Options pursuant to Section 2.05 (which shall be paid by Parent to the Exchange AgentSurviving Corporation as promptly as practicable and in any event immediately following the Effective Time) less any amounts withheld pursuant to Section 2.09, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and in accordance with the Uncertificated Sharesprovisions set forth in this Article 2. Promptly after following the Effective Time, Parent or the Payment Agent shall send, or shall cause the Exchange Agent mail to send, to each record every holder of Siebel record of Company Preferred Stock at that was issued and outstanding immediately prior to the Effective Time and that has not previously delivered its Certificates together with a properly completed and duly executed letter of transmittal (a “Letter of Transmittal”), in each case to the mailing address (or pursuant to the other delivery instructions) set forth in the Closing Payment Schedule, (x) a Letter of Transmittal and (y) instructions for use of such Letter of Transmittal in effecting the surrender of certificates.
(b) Each holder of outstanding Company Preferred Stock that has been converted into the right to receive a portion of the Merger Consideration pursuant to Section 2.03(a) will be entitled to receive, upon surrender to the Payment Agent of a Certificate, together with a properly completed Letter of Transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificate to the Exchange Payment Agent) for use in such exchange; provided), that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidenceAllocated Portion, if any, payable for each share of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Preferred Stock represented by a such Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawaccordance with the procedures set forth in this Article 2. Until so surrendered or transferredsurrendered, as the case may be, each such Certificate or Uncertificated Share shall represent from and after the Effective Time each such Certificate shall represent for all purposes only the right to receive such Siebel Merger Considerationthe Allocated Portion, if any, payable for each share of Company Stock represented thereby.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Payment Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Payment Agent that such taxes have Tax has been paid or are is not payable.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationAllocated Portion, if any, provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Payment Agent pursuant to Section 3.10(a2.11(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Company Stock six months sixty (60) Business Days after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel Merger Consideration payable in respect of such shares of Company Stock in accordance with this Section 3.10 2.11 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Allocated Portion payable in respect of such shares of Company Stock without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Stock for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any Immediately prior to such time when amounts remaining unclaimed by holders of shares of Siebel Company Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority, such unclaimed amounts shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person Persons previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Payment Agent pursuant to Section 3.10(a2.11(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Surrender and Payment. (a) Prior At the Effective Time, all shares of Company Capital Stock and all Company Equity Incentives, in each case outstanding immediately prior to the Election Record DateEffective Time, Parent shall automatically be cancelled and shall cease to exist, and, except for such rights expressly provided in Section 2.04, each holder of a certificate formerly representing any shares of Company Capital Stock (each, a “Certificate”), each holder of Series D Preferred, and each holder of record of a Company Equity Incentive shall cease to have any rights as a stockholder of the Company or as a holder of Company Equity Incentives.
(b) As promptly as practicable after the date hereof and, in any event, prior to the Effective Time, the Purchaser and the Stockholder Representative shall enter into the Payment Agency Agreement and the Escrow Agreement with the Agent. Pursuant to the Payment Agency Agreement, the Purchaser and the Stockholder Representative shall, among other things, appoint an the Agent as the paying agent (the “Exchange Agent”) for the purpose Merger and provide for the deposit of (i) mailing and receiving Election Forms and determining, in accordance the Closing Agent Deposit with this Article 3the Agent. Pursuant to the Escrow Agreement, the form Purchaser and the Stockholder Representative shall, among other things, appoint the Agent as the escrow agent for the Merger. One-half of Siebel Merger Consideration the initial fees of the Agent payable under the Payment Agency Agreement and the Escrow Agreement shall be treated as Transaction Expenses, and the other one-half shall be borne directly by the Purchaser. All subsequent fees of the Agent under the Payment Agency Agreement and the Escrow Agreement shall be paid one-half by the Stockholders Representative, solely on behalf of the Participating Securityholders, out of the Stockholder Representative Expense Amount, and one-half by the Purchaser.
(c) As promptly as practicable following the Effective Time and no later than the timeline specified in the Payment Agency Agreement, the Purchaser shall cause the Agent to be received by deliver to each holder of shares of Siebel StockCompany Capital Stock immediately prior to the Effective Time (including each holder of a Warrant that has exercised such Warrant, or shall be deemed to have exercised such Warrant pursuant to the terms of such Warrant, prior to the Effective Time) a letter of transmittal in substantially the form annexed hereto as Exhibit E, with such variances proposed by the Agent as the Company and Purchaser shall mutually agree to accept, with such acceptance not to be unreasonably withheld, conditioned or delayed (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates (to the extent applicable) in exchange for the applicable portion of the Aggregate Closing Merger Consideration pursuant to Section 2.02 and the Distribution Waterfall and the applicable portion of any Aggregate Post-Closing Merger Consideration payable thereafter. The Purchaser shall cause the Agent to pay, in accordance with the timelines set forth in the Payment Agency Agreement after receipt of a Certificate (to the extent applicable), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that the Agent may reasonably require in connection therewith, to the holder of such Certificate or holder of Series D Preferred (iias applicable) exchanging a cash amount as provided in Section 2.02 and the applicable Siebel Merger Consideration (A) for certificates representing Distribution Waterfall with respect to such Certificate so surrendered or such shares of Siebel Series D Preferred (as applicable) and any such Certificate shall forthwith be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any such Certificate (or any affidavit of lost certificate as contemplated by Section 2.12) or Letter of Transmittal. Until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Capital Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated other than Dissenting Shares”). Parent , shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates deemed from and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to sendfor all purposes, to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into evidence the right to receive the Siebel applicable portion of the Aggregate Merger Consideration Consideration. If, after the Effective Time, any Certificate is presented to the Agent, it shall be entitled cancelled and exchanged as provided in this Section 2.06.
(d) With respect to receiveeach Participating Warrantholder (other than any holder of a Warrant that has exercised such Warrant, upon (i) surrender or shall be deemed to have exercised such Warrant pursuant to the Exchange Agent terms of a Certificatesuch Warrant, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by prior to the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated SharesEffective Time), the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, Agent shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent promptly after the Effective Time (or within such other time frame set forth in the Payment Agency Agreement) deliver to each such Participating Warrantholder a Letter of Transmittal and instructions for all purposes only completing, executing, and returning such Letter of Transmittal in exchange for the right applicable portion of the Aggregate Closing Merger Consideration pursuant to receive Section 2.03 and the Distribution Waterfall (in each case calculated in accordance with the terms of the applicable Warrant) and the applicable portion of any additional Aggregate Merger Consideration payable thereafter in accordance with the Distribution Waterfall. The Agent shall, as promptly as practicable following the Effective Time and no later than the timelines specified in the Payment Agency Agreement, after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Agent may reasonably require in connection therewith, pay to such Siebel Merger ConsiderationParticipating Warrantholder a cash amount as provided in Section 2.03 and the Distribution Waterfall with respect to the portion of the applicable Warrant in respect of which the Letter of Transmittal was delivered. No interest shall be paid or shall accrue on any cash payable upon delivery of any such Letter of Transmittal.
(ce) If any portion of the Siebel Aggregate Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Warrant is registered, it shall be a condition to such payment that (i) either such Certificate or Warrant shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred transfer, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Warrant or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(ef) Any portion of the Siebel Aggregate Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six any Participating Stockholder or Participating Warrantholder twelve months after the Effective Time shall be returned to Parent upon demand, the Purchaser and any such holder Participating Stockholder or Participating Warrantholder who has not exchanged shares surrendered Certificates, if applicable, and delivered Letters of Siebel Stock Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Agent may reasonably require in connection therewith, as applicable, for the Siebel Aggregate Merger Consideration in accordance with this Section 3.10 2.06 prior to that time shall thereafter look only to Parent the Surviving Corporation as a general creditor thereof for payment of any of the Siebel Aggregate Merger Consideration; provided, that any such portion of the Aggregate Merger Consideration payable from the Indemnification Escrow Fund or the Stockholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement, the Distribution Waterfall, the Payment Agency Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any dividends portion of payments resulting from the Post-Closing Adjustment to which the Participating Stockholder or Participating Warrantholder may become entitled in accordance with the terms of this Agreement, the Distribution Waterfall, the Payment Agency Agreement and distributions with respect thereto, in respect of such shares without any interest thereonthe Escrow Agreement shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Parent the Purchaser shall not be liable to any Participating Stockholder, Participating Warrantholder or any former holder of shares of Siebel Stock Options or other Awards for any amounts paid to a public official pursuant to applicable abandoned property, escheat escheat, or similar lawsLaws. Any amounts portion of the Aggregate Merger Consideration remaining unclaimed by Participating Stockholders, Participating Warrantholders or former holders of shares of Siebel Stock two years Options or other Awards 24 months after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable lawLaw, the property of Parent, the Purchaser free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part ; provided, that any such portion of the Siebel Aggregate Merger Consideration, Consideration payable from the Indemnification Escrow Fund and no cash payment in lieu of fractional shares as provided in Section 3.11, the Stockholder Representative Expense Fund shall be paid held and distributed to the holder Persons entitled thereto in accordance with the terms of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferredthis Agreement, as the case may beDistribution Waterfall, as provided in this Section. Following such surrender or transferthe Payment Agency Agreement and the Escrow Agreement, there shall be paid, without interest, at the respective times and subject to the Person in whose name contingencies specified herein and therein and any portion of the securities of Parent have been registered, (i) Post-Closing Adjustment to which the Participating Stockholders or Participating Warrantholders may become entitled shall become payable at the time of such surrender or transfer, times and subject to the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiescontingencies specified herein.
(g) Any For the avoidance of doubt, no portion of the Siebel Aggregate Merger Consideration need be paid to the Agent under the Payment Agency Agreement with respect to any Dissenting Shares unless and until such Dissenting Shares cease to be Dissenting Shares. On request by the Purchaser at any time after the Effective Time, any portion of the Aggregate Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demandthe Purchaser.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent Buyer shall appoint an exchange agent (the “Exchange Agent”) for the purpose of exchanging Certificates for the Merger Consideration. At or promptly following the Effective Time, Buyer shall deposit, or cause to be deposited, with the Exchange Agent (i) mailing and receiving Election Forms and determiningcertificates representing the Parent Class A Common Shares issuable pursuant to Section 2.2(a)(iv), in accordance with this Article 3, (ii) cash sufficient to make the form of Siebel Merger Consideration cash payments payable pursuant to be received by each holder of shares of Siebel StockSection 2.2(a)(iv), and (iiiii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available from time to the Exchange Agent, time as needed, cash sufficient to pay cash in lieu of fractional shares to the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharesextent required by Section 2.6. Promptly after the Effective Time, Parent shall Buyer will send, or shall cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for ), which letter shall be in such form as the Company and Buyer may reasonably agree to use in such exchange; provided, that any such letter effecting delivery of transmittal and instructions shall be sent to holders shares of Uncertificated Shares only Company Common Stock to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyAgent.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall as provided herein will be entitled to receive, receive the Merger Consideration in respect of the shares of Company Common Stock represented by such Certificate only upon (i) surrender to the Exchange Agent of a such Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent so converted shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration. No interest will be paid or accrued on any cash payable as part of the Merger Consideration or in lieu of fractional shares pursuant to Section 2.6.
(c) If any portion of the Siebel Merger Consideration is to be registered in or paid to the name of a Person other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to the registration or payment of such payment Merger Consideration that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred transfer, and (ii) the Person requesting such registration or payment of the Merger Consideration shall (A) pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such registration or payment to in the name of a Person other than the registered holder of such Certificate Certificate, or Uncertificated Share or (B) establish to the satisfaction of the Exchange Agent Parent that such taxes have Tax either has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stockcapital stock of the Company on the stock records of, or relating to, the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Exchange Agent, the Surviving CorporationCorporation or Buyer, they shall be canceled and and, if applicable, exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures and limitations set forth forth, in this Section 3.10Article II.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a2.3(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after the Effective Time shall be returned to Parent upon demand, Buyer and any such holder who has not exchanged such holder’s shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.3 prior to that time shall thereafter look only to Parent Buyer for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such holder’s shares without any interest thereon. Notwithstanding the foregoing, Parent Buyer shall not be liable to any holder of shares of Siebel Stock Person for any amounts paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, If any Certificate shall not have been surrendered immediately prior to such time when date on which any Merger Consideration, any dividends or distributions payable to the amounts holder of such Certificate or any cash payable to the holder of such Certificate pursuant to this Section 2.3 would otherwise escheat to or become the property of any Governmental Entity) shall becomeAuthority, any such Merger Consideration, dividends or distributions in respect of such Certificate or such cash shall, to the extent permitted by applicable lawLaw, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, Class A Common Shares shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 2.3. Following Subject to the effect of applicable Laws, following such surrender or transfersurrender, there shall be paid, without interest, to the Person record holder of the Parent Class A Common Shares issued in whose name the securities of Parent have been registered, exchange therefor (i) at the time of such surrender or transfersurrender, the amount of any cash all dividends and other distributions payable in lieu respect of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Parent Class A Common Shares with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and not previously paid, and (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to such Parent Class A Common Shares with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender such surrender. For purposes of dividends or transfer payable with other distributions in respect of Parent Class A Common Shares, all Parent Class A Common Shares to such securitiesbe issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(g) Any portion of the Siebel Merger Consideration The Exchange Agent shall invest any cash made available to the Exchange Agent pursuant to Section 3.10(a2.3(a) or Section 3.11 as directed by Buyer on a daily basis. Any interest and other income resulting from such investments shall promptly be paid to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demandBuyer.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a United States bank and trust company reasonably acceptable to the Company as agent (the “Exchange Paying Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging for the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock Shares (the “Certificates”) or (B) for uncertificated shares of Siebel Stock Shares (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Company and Parent. Promptly after the Effective Time on the date of Closing, Parent shall make available to the Exchange Paying Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Effective Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.08(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event within three Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Paying Agent to send, to each record holder of Siebel Stock Shares at the Effective Time a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any the form and substance of such letter of transmittal and instructions shall be sent reasonably agreed to holders of Uncertificated Shares only by Parent and the Company and prepared prior to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyClosing.
(ba) Each holder of shares of Siebel Stock Shares that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Paying Agent (or such other evidence, if any, of transfer as the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock payable for each Share represented by a such Certificate or for each such Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(cb) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent and Parent that such taxes have Tax has been paid or are is not payable.
(c) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than three months or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of the Company’s stockholders at the Effective Time in the amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel StockShares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 3.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Paying Agent pursuant to Section 3.10(a3.08(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of shares of Siebel Stock six months Shares one year after the Effective Time Time, to the extent permitted by the TBOC, shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Stock such Shares for the Siebel Merger Consideration in accordance with this Section 3.10 3.08 prior to that time shall thereafter look only to Parent for payment only as general creditors of Parent with respect to the Merger Consideration that may be payable upon due surrender of the Siebel Merger ConsiderationCertificates or Uncertificated Shares held by them, without interest and subject to any dividends and distributions with respect thereto, withholding of Taxes required by Applicable Law as provided in respect of such shares without any interest thereonSection 3.12. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of shares of Siebel Stock Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock Shares two years after the Effective Time (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, become to the extent permitted by applicable law, the TBOC the property of Parent, Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.10(a3.08(a) or Section 3.11 to pay for shares of Siebel Stock Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a payment agent reasonably acceptable to the Company (the “Exchange Payment Agent”) to act as agent for the Company’s stockholders who shall become entitled to receive funds pursuant to this Agreement, including as agent for the purpose of (i) mailing and receiving Election Forms and determiningsurrendering, in accordance with this Article 3for the Per Share Merger Consideration, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated ;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Siebel Stock Company Common Stock). At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Payment Agent an amount equal to the amount of the Aggregate Consideration (other than with respect to the portion of the Aggregate Consideration related to Company Equity Award that will be paid pursuant to Section 2.04(g)) required to be paid pursuant to this Article 2 (the “Uncertificated SharesPayment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Aggregate Consideration (other than with respect to the portion of the Aggregate Consideration related to Company Equity Awards that will be paid pursuant to Section 2.04(g)), Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Payment Agent as and to the extent directed by ▇▇▇▇▇▇; provided, however, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the Aggregate Consideration payable hereunder, and following any losses Parent shall, or shall cause the Surviving Corporation to, promptly provide additional funds to the Payment Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of six (6) months after the Effective Time or the full payment of the Aggregate Consideration (other than with respect to the portion of the Aggregate Consideration related to Company Equity Awards that will be paid pursuant to Section 2.04(g)). The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall make available to cause the Exchange Surviving Corporation to) pay all charges and expenses, including those of the Payment Agent, as needed, in connection with the applicable Siebel conversion of shares of Company Common Stock into the right to receive the Per Share Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shareseach of such shares. Promptly after the Effective Time, and in any event no later than two (2) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Payment Agent to send, to each record holder of Siebel shares of Company Common Stock at as of immediately prior to the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent) Payment Agent for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby).
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Per Share Merger Consideration shall be entitled to receivereceive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Exchange Payment Agent of a such Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Payment Agent, or (ii) receipt of an “agent’s message” by the Exchange Payment Agent (or such other evidence, if any, of transfer as the Exchange Payment Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part Company Common Stock, and, in each case, delivery to the Payment Agent of such Siebel Merger Consideration (if any), at Parent’s option, shall other documents as may reasonably be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawthe Payment Agent. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Per Share Merger Consideration with respect to each share of Company Common Stock represented by such Siebel Merger ConsiderationCertificate. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Payment Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Payment Agent that such taxes have Tax has been paid or are is not payable.
(d) After Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Payment Agent and the Depository Trust Company (“DTC”) with the objective that the Payment Agent shall transmit to DTC or its nominee on or promptly after the Effective Time, and in any event no later than two (2) Business Days after the Effective Time, an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time multiplied by (ii) the Per Share Merger Consideration.
(e) All cash amounts properly paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Per Share Merger ConsiderationConsideration with respect to each share of Company Common Stock represented by such Certificate, in accordance with the procedures set forth in this Section 3.10Article 2.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six (6) months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Per Share Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Siebel Merger Considerationcash to which they are otherwise entitled in accordance with the procedures set forth in this Article 2, and any dividends and distributions with respect theretowithout interest. None of Parent, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent Surviving Corporation or the Payment Agent shall not be liable to any holder stockholder of shares of Siebel Stock the Company for any cash amounts paid properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesApplicable Law.
(g) Any portion Notwithstanding anything in this Section 2.04 to the contrary, with respect to current and former employees of the Siebel Company and its Subsidiaries who hold outstanding Company Equity Awards as described in Section 2.06(a) and Section 2.06(b) that are being converted into the right to receive the Per Share Merger Consideration made available in accordance with this Agreement, at the Closing, Parent shall pay or cause to be paid to the Exchange Agent pursuant Surviving Corporation an amount in cash necessary for the payment of the Per Share Merger Consideration with respect to Section 3.10(asuch Company Equity Awards for further payment to such holders of Company Equity Awards, no later than five (5) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At Business Days following the Effective Time, through the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCLSurviving Corporation’s payroll system.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) mailing and receiving Election Forms and determiningCertificates or (ii) Uncertificated Shares for the Merger Consideration payable in respect of the shares of Company Common Stock. As of the Effective Time, Parent shall deposit with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to Section 2.04 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock issuable pursuant to Section 2.03(a)(i) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the aggregate Cash Consideration payable pursuant to Section 2.03(a)(i). Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed, the applicable Siebel Merger Consideration needed additional cash and/or shares of Parent Common Stock sufficient to be issued pay any dividends or paid other distributions to which such holders are entitled pursuant to Section 2.04(f) and cash in respect lieu of the Certificates and the Uncertificated Sharesany fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.08. Promptly after the Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter . All certificates (or evidence of transmittal shares in book-entry form) and instructions cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be sent referred to holders of Uncertificated Shares only to in this Agreement as the extent determined necessary by Oracle and “Exchange Fund.” Parent shall cause the Exchange Agent to effect deliver the transactions Merger Consideration contemplated herebyto be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of each share of the Siebel Company Common Stock represented by a such Certificate or Uncertificated ShareShare (A) the Merger Consideration and (B) cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f). The shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any)Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Company Common Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 or Section 2.04(f)) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes transfer or similar Taxes have been paid or are not payable.
(d) After Upon the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Section 3.10Article II.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent upon demandor as otherwise instructed by Parent, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 Section 2.04 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect theretoto the Share Consideration as contemplated by Section 2.08 and Section 2.04(f)), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.04, Parent shall pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Share Consideration have been registered, (i) in connection with the payment of the Share Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.08, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Share Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting part of the Siebel Merger Share Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11pursuant to Section 2.08, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesSection 2.04.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Stock in connection with the Siebel Merger Consideration made available Merger, and the filing of any related Tax Returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe sole responsibility of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Aetna Inc /Pa/)
Surrender and Payment. (a) Prior Parent shall designate a bank or trust company reasonably acceptable to the Election Record DateCompany, Parent shall appoint an pursuant to a customary agreement in form and substance reasonably acceptable to the Company, to act as the agent for the holders of Shares in connection with the Merger (the “Exchange Agent”) for to receive in trust the purpose funds to which holders of (iShares and holders of Company Stock Options shall become entitled pursuant to Sections 1.11(c) mailing and receiving Election Forms and determiningor 1.12, in accordance with this Article 3as applicable. At the Effective Time, the form of Siebel Merger Consideration Parent or Purchaser shall deposit or cause to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to deposited with the Exchange Agent, for the benefit of holders of Shares and holders of Company Stock Options the aggregate consideration to which such holders shall be entitled at the Effective Time pursuant to Sections 1.11(c) or 1.12, as neededapplicable (the “Exchange Fund”) and such funds shall not be used for any other purpose. Such funds shall be invested, in customary investments, as directed by Parent, Purchaser or the applicable Siebel Merger Consideration Surviving Corporation in its sole discretion pending payment thereof by the Exchange Agent to be issued or paid in respect holders of Shares. Earnings from such investment of the Certificates Exchange Fund shall be the sole and exclusive property of Purchaser or the Uncertificated Surviving Corporation, as applicable, and no part of such earnings shall accrue to the benefit of the holders of Shares. Promptly .
(b) As soon as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each record holder of Siebel Stock at the Effective Time one or more certificates formerly representing Shares (each, a “Certificate”) (i) a letter of transmittal in form and instructions (substance reasonably acceptable to the Company, which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper actual delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration pursuant to Section 1.11(c). Upon surrender of a Certificate for cancellation to the Exchange Agent or to such exchange; providedother agent or agents as may be appointed by Parent, that any together with such letter of transmittal and instructions transmittal, duly executed, the holder of such Certificate shall be sent entitled to holders receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and the Certificate so surrendered shall be cancelled. No record holder of Uncertificated Shares only an uncertificated Share shall be required to execute or deliver any letter of transmittal or similar document in order to receive the extent determined necessary by Oracle Merger Consideration and Parent shall cause the Exchange Agent to effect deliver the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receiveeach such record holder promptly following the Effective Time, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, in each case except as explicitly provided otherwise in this Section 1.13 or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect Section 1.14. If payment of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid made to a Person person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated any uncertificated Share is registered, it shall be a condition to such of payment that (i) either such the Certificate so surrendered shall be properly endorsed indorsed or shall be otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent have paid any transfer or and other taxes required as a result by reason of such the payment of the Merger Consideration to a Person other than the registered holder of such the Certificate surrendered or Uncertificated uncertificated Share or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have tax either has been paid or is not applicable. Parent shall cause the Exchange Agent to pay any amounts payable to holders of Shares pursuant to Section 1.11(c), and to pay any amounts payable to holders of Company Stock Options pursuant to Section 1.12, in each case as promptly as practicable following such time as such amounts become payable in accordance with the terms hereof.
(c) Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of any Certificate or Certificates or uncertificated Shares such amounts as are not payablerequired to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any other provision of applicable federal, state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent or the Surviving Corporation, such withheld amount shall be treated for all purposes of this Agreement as having been paid to the holders of the Shares in respect of which such deduction and withholding was made.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent Exchange Fund which remains undistributed to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by former stockholders of the holders of shares of Siebel Stock Company for six months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demanddemand of the Surviving Corporation, and any such holder former stockholders who has have not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance theretofore complied with this Section 3.10 prior 1.13, to that time the extent applicable, shall thereafter look only to Parent the Surviving Corporation for payment of their claim for cash pursuant to Section 1.11(c). Neither Parent, the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding Exchange Agent nor the foregoing, Parent Surviving Corporation shall not (absent manifest error) be liable to any former holder of shares of Siebel Stock Shares for any amounts paid such cash held in the Exchange Fund which is delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Law.
(e) The Merger Consideration paid in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, all rights pertaining to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.Shares
(f) No dividends or other distributions with respect to Parent Stock constituting part At the close of business on the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to day during which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable occurs, the stock transfer books of the Company shall be closed and no transfer of Shares shall thereafter be made on the date records of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesCompany.
(g) Any portion If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Siebel Merger Consideration made available Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as Parent or the Exchange Agent pursuant may direct as indemnity against any claim that may be made against them with respect to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Timesuch Certificate, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued will issue and pay in exchange for Oracle Stock in accordance with Section 251(g) of DGCLsuch lost, stolen or destroyed Certificate the Merger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Oce N V)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an the Company’s transfer agent (or such other financial institution to which the Company and Parent agree) (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel StockCertificates, and (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). At or prior to the Effective Time, Parent shall deposit, or cause Merger Sub to deposit, with the Exchange Agent to be held in trust for the benefit of the holders of Certificates and Book-Entry Shares, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the outstanding shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (the “Payment Fund”). The Exchange Agent shall invest the Payment Fund as directed by Parent; provided, that such investments shall be in obligations of or guaranteed by the United States of America or in commercial paper obligations rated “A-1” or “P-1” or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three (3) months. Any interest and other income resulting from such investments shall be paid to, or as directed by, Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make available to all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. As soon as neededpracticable, the applicable Siebel Merger Consideration to be issued or paid but in respect of the Certificates and the Uncertificated Shares. Promptly after event no later than five (5) Business Days following the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, (i) a letter of transmittal and instructions (which shall be in customary form and have such other provisions as Parent and the Company shall reasonably agree and shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates Certificates, or Loss Documentation in lieu thereof as provided in Section 3.06, or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent), and (ii) instructions for use in such exchange; provided, that any such letter effecting the surrender of transmittal and instructions shall be sent to holders of Uncertificated Certificates or Book-Entry Shares only to for the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyMerger Consideration.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. At the Effective Time, the stock transfer books of the Surviving Corporation shall be closed and thereafter there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(aPayment Fund (including any interest or other amounts earned with respect thereto) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months 180 days after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.02 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, the Company or the Exchange Agent shall not be liable to any holder person in respect of shares of Siebel Stock for any amounts paid that would otherwise have been payable in respect of any Certificate or Book-Entry Share from the Payment Fund delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeEntity shall, to the extent permitted by applicable lawLaw, immediately prior to such time become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of paying the Merger Consideration as provided in Section 1.2(a). Parent shall provide (or shall cause to be provided) to the Exchange Agent, at or prior to the Effective Time, cash sufficient to pay the Merger Consideration in respect of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or and (Bii) for the uncertificated shares of Siebel Company Common Stock (the “Uncertificated Shares”) (but not any Merger Consideration in respect of any Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company RSA Merger Consideration) (such cash, the “Exchange Fund”). Parent shall make available to If, for any reason (including losses) the Exchange Agent, as needed, Fund is inadequate to pay the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated SharesShares (excluding any Merger Consideration in respect of any Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company RSA Merger Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. All cash deposited with the Exchange Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, send to each record holder of Siebel shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary or any Subsidiary of the Company or Parent) a letter of transmittal transmittal, in form and substance reasonably acceptable to the Surviving Corporation, and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock (other than Company Restricted Shares) that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or Uncertificated Shares.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Siebel Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a1.3(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months one year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 1.3 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Consideration in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions The agreement with respect to the Exchange Agent shall provide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent Stock constituting part of or, after the Siebel Merger ConsiderationEffective Time, and no cash payment in lieu of fractional shares as the Surviving Corporation; provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, that (i) at no such investment (including any losses thereon) shall relieve Parent or the time of such surrender or transferExchange Agent from making the payments required by this Article I, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in (w) short-term direct obligations of the appropriate United States of America, (x) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment dateof principal and interest, (y) short-term commercial paper rated the amount highest quality by either ▇▇▇▇▇’▇ Investors Service, Inc. or Standard and Poor’s Ratings Services or (z) certificates of dividends deposit, bank repurchase agreements or other distributions banker’s acceptances of commercial banks with a record date after capital exceeding $10 billion. Any interest or income produced by such investments will be payable to the Effective Time and prior to surrender Surviving Corporation or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesParent, as directed by Parent.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Luminex Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an a bank or trust company organized under the laws of the United States or any state thereof with capital, surplus and undivided profits of at least $500,000,000 and reasonably acceptable to the Company to act as disbursing agent (the “Exchange "Disbursing Agent”") for the purpose payment of (i) mailing and receiving Election Forms and determiningthe Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in accordance with this Article 3form and substance reasonably acceptable to the Company, and Parent shall at or prior to the form of Siebel Merger Consideration Effective Time deposit or cause to be received by each holder of shares of Siebel Stock, and (ii) exchanging deposited with the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall Disbursing Agent cash in an aggregate amount sufficient to make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect all of the Certificates and payments pursuant to Section 3.02 to holders of Shares (such amounts being hereinafter referred to as the Uncertificated Shares. "Exchange Fund").
(b) Promptly after the Effective Time, Parent shall send, or and the Surviving Corporation shall cause the Exchange Disbursing Agent to send, mail to each person who was a record holder as of Siebel Stock at the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates") and whose Shares were converted into the right to receive Merger Consideration pursuant to Section 3.02, a form of letter of transmittal transmittal, in form and instructions substance reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Disbursing Agent) ), and instructions for use in such exchange; provided, that any such letter effecting the surrender of transmittal and instructions shall be sent to holders the Certificates in exchange for payment of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) Consideration. Upon surrender to the Exchange Disbursing Agent of a Certificate, together with a properly completed such letter of transmittaltransmittal duly executed and such other customary documents as may be required, the holder of such Certificate shall be paid promptly in exchange therefor cash in an amount equal to the product of the number of Shares represented by such Certificate multiplied by the Merger Consideration, and such Certificate shall forthwith be canceled. No interest will be paid or accrued on the cash payable upon the surrender of the Certificates.
(c) If payment is to be made to a person other than the person in whose name the Certificate surrendered is registered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment 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 satisfaction of the Surviving Corporation that such tax has been paid or is not applicable.
(d) Until surrendered in accordance with the provisions of this Section 3.03, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other Subsidiary of Parent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect any wholly owned Subsidiary of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share Company) shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration in cash multiplied by the number of Shares evidenced by such Siebel Merger ConsiderationCertificate, without any interest thereon.
(ce) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred At and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After after the Effective Time, there shall be no further registration of transfers of shares Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of Siebel Stockthe Surviving Corporation. From and after the Effective Time, all Shares issued and outstanding prior to the Effective Time shall cease to be outstanding and shall automatically be cancelled and cease to exist, and, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation for any reason, they such Certificates shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth cash as provided in this Section 3.10Article III. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be closed.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six At any time more than 12 months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parent upon demandit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and any other income received by the Disbursing Agent in respect of all such holder who has not exchanged shares funds). Thereafter, holders of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time Certificates shall thereafter look only to Parent for payment (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Siebel Merger ConsiderationCertificates held by them. None of Parent, and any dividends and distributions with respect theretothe Company, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent Surviving Corporation nor the Disbursing Agent shall not be liable to any holder of shares of Siebel Stock a Certificate for any amounts paid Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to applicable any abandoned property, escheat or other similar lawslaw. Any amounts remaining unclaimed by holders of shares of Siebel Stock two Subject to applicable law and public policy, if any Certificates shall not have been surrendered prior to three years after the Effective Time (or such earlier date, immediately prior to such time when the amounts earlier date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity) shall become), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable lawlaw and public policy, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (International Flavors & Fragrances Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent select a reputable bank or trust company to act as Paying Agent in the Merger (the “Exchange Paying Agent”) for the purpose payment of (i) mailing the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and receiving Election Forms and determiningeach Book-Entry Share outstanding immediately prior to the Effective Time, in accordance with this Article 3each case, other than the form of Siebel Merger Consideration to be received by each holder of shares of Siebel StockCancelled Shares and the Subsidiary-held Shares, and except for any Dissenting Shares and (ii) exchanging the applicable Siebel Merger Option Consideration, PSU Consideration (A) for certificates representing shares of Siebel Stock (and RSU Consideration payable by the “Certificates”) Paying Agent pursuant to Section 3.05. At or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly immediately after the Effective Time, Ultimate Parent shall sendcause Parent to, and Parent shall, deposit or cause to be deposited with the Paying Agent cash in an amount sufficient to pay the aggregate Merger Consideration, RSU Consideration, PSU Consideration and Option Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”). In the event the Exchange Fund shall be insufficient to make the payments in connection with the Merger Consideration contemplated by Section 3.01 or the Option Consideration, PSU Consideration or RSU Consideration contemplated by Section 3.05, Ultimate Parent shall cause Parent to, and Parent shall, promptly (and in any case within two Business Days of learning of any such insufficiency) deposit or cause to be deposited additional funds with the Paying Agent in an amount that is equal to the deficiency in the amount required to make such payment. The Paying Agent shall, pursuant to Table of Contents irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 and the Option Consideration, PSU Consideration and RSU Consideration contemplated to be issued pursuant to Section 3.05 out of the Exchange Agent to send, to each record holder of Siebel Stock at Fund. The Exchange Fund shall not be used for any other purpose.
(b) As soon as reasonably practicable after the Effective Time and in any event not later than the third Business Day following the Effective Time, Parent will cause the Paying Agent to send to each holder of record of shares of Company Common Stock (other than the Cancelled Shares and the Subsidiary-held Shares and except for any Dissenting Shares) (i) a letter of transmittal and instructions (which shall specify that the delivery of such Certificates or transfer of such Book-Entry Shares shall be effecteddeemed to have occurred, and risk of loss and title to the Certificates or Book-Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or transfer of the Uncertificated Book-Entry Shares to the Exchange Paying Agent) in such form as Parent and the Company may reasonably agree, for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder effecting delivery of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a CertificatePaying Agent, together with a properly completed letter of transmittal, or and (ii) receipt instructions for use in effecting the surrender of an “agent’s message” by the Exchange Agent Certificates (or such other evidence, if any, effective affidavits of transfer as the Exchange Agent may reasonably requestloss in lieu thereof) in the case of a book-entry or transfer of Uncertificated Shares, the Siebel Merger Consideration Book-Entry Shares in respect of exchange for the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) Upon (i) surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof) for cancellation, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions or (ii) compliance with the reasonable procedures established by the Paying Agent for delivery of Book-Entry Shares, the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, in cash, the Merger Consideration in respect of the Company Common Stock formerly represented by such Certificate or Book-Entry Share, and the Certificates or Book-Entry Shares so surrendered shall forthwith be cancelled. No interest shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article 3.
(d) If any portion of the Siebel Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition precedent to such payment that the Person requesting such payment shall pay any transfer Taxes required by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or shall establish to the transferred Uncertificated Share satisfaction of the Paying Agent that such Tax has been paid or is not payable. If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to such payment the registration thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Paying Agent that such taxes have Tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Brocade Communications Systems Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an the Company's transfer agent (or such other financial institution to which the Company and Parent agree) (the “Exchange Agent”) to act as the agent for the purpose of exchanging the Merger Consideration for: (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel StockCertificates, and (ii) exchanging book-entry shares which immediately prior to the applicable Siebel Merger Consideration (A) for certificates representing Effective Time represented the shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Book-Entry Shares”). At or prior to the Effective Time, Parent shall deposit, or cause Merger Sub to deposit, with the Exchange Agent to be held in trust for the benefit of the holders of Certificates and Book-Entry Shares, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the outstanding shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (the “Payment Fund”). The Exchange Agent shall invest the Payment Fund as directed by Parent; provided, that such investments shall be in obligations of or guaranteed by the United States of America or in commercial paper obligations rated “A-1” or “P-1” or better by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation, respectively, or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three (3) months. Any interest and other income resulting from such investments shall be paid to, or as directed by, Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make available to all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration. As soon as neededpracticable, the applicable Siebel Merger Consideration to be issued or paid but in respect of the Certificates and the Uncertificated Shares. Promptly after event no later than five (5) Business Days following the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time Time, (i) a letter of transmittal and instructions (which shall be in customary form and have such other provisions as Parent and the Company shall reasonably agree and shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates Certificates, or Loss Documentation in lieu thereof as provided in Section 3.06, or transfer of the Uncertificated Book-Entry Shares to the Exchange Agent), and (ii) instructions for use in such exchange; provided, that any such letter effecting the surrender of transmittal and instructions shall be sent to holders of Uncertificated Certificates or Book-Entry Shares only to for the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyMerger Consideration.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s 's message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a bookBook-entry transfer of Uncertificated Entry Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in Section 3.03, each such Certificate or Uncertificated Share Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive such Siebel the Merger ConsiderationConsideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share Book-Entry Share, as applicable, is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Book-Entry Share shall be properly transferred transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Book-Entry Share, as applicable, or establish to the reasonable satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. At the Effective Time, the stock transfer books of the Surviving Corporation shall be closed and thereafter there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(aPayment Fund (including any interest or other amounts earned with respect thereto) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months 180 days after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 3.02 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, the Company or the Exchange Agent shall not be liable to any holder person in respect of shares of Siebel Stock for any amounts paid that would otherwise have been payable in respect of any Certificate or Book-Entry Share from the Payment Fund delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeEntity shall, to the extent permitted by applicable lawLaw, immediately prior to such time become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Surrender and Payment. (a) Pursuant to Section 3.2 of the Separation and Distribution Agreement, the Exchange Agent shall hold, for the account of the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed in the Distribution.
(b) Prior to the Election Record DateEffective Time, Parent shall appoint enter into an exchange agreement in customary form (the “Exchange Agent Agreement”) with the transfer agent of Parent to act as agent (the “Exchange Agent”) for the purpose payment of (i) mailing and receiving Election Forms and determiningthe Merger Consideration Shares. Substantially concurrently with the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the SpinCo Holders, for exchange in accordance with this Article 3Section 3.2(b) and Section 3.3 promptly after the Effective Time, book-entry shares representing the Merger Consideration Shares issuable to the SpinCo Holders pursuant to Section 3.1(a)(i) (such book-entry shares of Parent Stock, together with any cash received by the Exchange Agent in respect of dividends or distributions with respect thereto pursuant to Section 3.2(g), as applicable, the form of Siebel Merger Consideration “Exchange Fund”). Following the Effective Time, xi the Exchange Agent shall deliver, pursuant to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock instructions from Parent (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated SharesParent Instructions”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration Shares to be issued or paid in respect pursuant to this Article III out of the Certificates and the Uncertificated SharesExchange Fund. Promptly The Exchange Fund shall not be used for any purpose other than as specified in this Section 3.2(b).
(c) As promptly as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, deliver to each record holder SpinCo Holder, from the Exchange Fund, the shares of Siebel Parent Common Stock at issuable in respect of such shares of SpinCo Common Stock pursuant to the Effective Time a letter of transmittal and instructions (which shall specify that the delivery Merger. Each SpinCo Holder shall be effected, and risk entitled to receive in respect of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel SpinCo Common Stock held by such Person a book-entry authorization representing the number of whole shares of Parent Common Stock that have been converted into such holder has the right to receive the Siebel Merger Consideration pursuant to Section 3.1(a)(i) (and any dividends or distributions and other amounts pursuant to Section 3.2(g)).
(d) Each SpinCo Holder shall be entitled to receive, receive the Per Share Merger Consideration in respect of the SpinCo Common Stock upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, transferred each such Certificate or Uncertificated Share share of SpinCo Common Stock shall represent after the Effective Time for all purposes only the right to receive such Siebel the Per Share Merger Consideration.
(c) If any portion Consideration payable in respect thereof. Upon payment of the Siebel Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay pursuant to the Exchange Agent any transfer or other taxes required as a result provisions of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.103.2, each share of SpinCo Common Stock so transferred shall immediately be cancelled.
(e) Any The Parent Instructions will instruct the Exchange Agent to designate as Restricted Shares a number of shares of each SpinCo Holder’s aggregate portion of the Siebel Merger Consideration made available by Parent Shares equal to the Exchange Agent pursuant Restricted Portion, which shares will include a restrictive legend on its book-entry position describing the Transfer Restriction. For so long as the Restricted Shares remain subject to the forfeiture conditions specified in Section 3.10(a3.3, the holder thereof will be entitled to (i) that remains unclaimed by exercise the holders voting rights of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, such Restricted Shares and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and (ii) receive any dividends and or other distributions with respect thereto, payable in respect of such shares without any interest thereonRestricted Shares. Notwithstanding Holders of the foregoing, Parent shall Restricted Shares will not be liable entitled to any holder of transfer such shares of Siebel Stock for any amounts paid so long as such shares are subject to a public official forfeiture pursuant to applicable abandoned property, escheat or similar lawsSection 3.3. The book-entry positions of each Restricted Share will include a restrictive legend that such shares may not be transferred until such time as the forfeiture conditions with respect to such shares lapse (the “Transfer Restriction”). Any amounts remaining unclaimed by holders attempted transfer in violation of the Transfer Restriction will be void ab initio, and the Exchange Agent will not process any transfers of the Restricted Shares (other than the forfeiture of such shares of Siebel Stock two years after the Effective Time (or pursuant to Section 3.3) for so long as such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretoshares remain Restricted Shares.
(f) No dividends For each SpinCo Holder, the Exchange Agent will include in the book-entry position a restrictive legend as set forth below in respect of the Restricted Shares. The Exchange Agent shall not be entitled to vote or other distributions exercise any rights of ownership with respect to Parent Common Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid held by it from time to the holder of any Certificates not surrendered time hereunder or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to under the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to ParentAgreement. THE SECURITIES REPRESENTED BY THIS BOOK-ENTRY POSITION ARE SUBJECT FORFEITURE PURSUANT TO AN AGREEMENT THAT ALSO CONTAINS RESTRICTIONS ON TRANSFER. A COPY OF THE AGREEMENT WILL BE FURNISHED TO ANY INTERESTED PARTY BY THE COMPANY UPON WRITTEN REQUEST, upon demandWITHOUT CHARGE.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.”
Appears in 1 contract
Sources: Merger Agreement (Flyexclusive Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration, (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Stock (the each a “CertificatesCertificate”) or (Bii) for uncertificated shares of Siebel Company Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall make available to deposit with the Exchange Agent, as needed, for the applicable Siebel Merger Consideration to be issued or paid in respect benefit of the Certificates holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock issuable pursuant to Section 2.04 and (ii) cash in immediately available funds in an amount sufficient for the Uncertificated Sharespayment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders are entitled pursuant to Section 2.09. Promptly after the Effective TimeTime and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange; provided, that any such letter . All evidence of transmittal shares of Parent Common Stock in book-entry form and instructions cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be sent referred to holders of Uncertificated Shares only to in this Agreement as the extent determined necessary by Oracle and “Exchange Fund.” Parent shall cause the Exchange Agent to effect deliver the transactions Merger Consideration contemplated herebyto be issued or paid pursuant to this Article 2 out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel each share of Company Stock represented by a such Certificate or Uncertificated ShareShare (A) the applicable Merger Consideration and (B) any cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect thereto as contemplated by Section 2.09 and Section 2.06(f), as applicable. The shares of Parent Common Stock constituting part of such Siebel Merger Consideration (if any)shall, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger ConsiderationApplicable Law.
(c) If any portion of the Siebel Merger Consideration (or cash in lieu of any fractional shares of Parent Common Stock or any dividends and distributions with respect thereto contemplated by Section 2.09 or Section 2.06(f), as applicable) is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes similar Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes transfer or similar Taxes have been paid or are not payable.
(d) After From and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Stock on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Siebel Surviving CorporationCompany or the Exchange Agent for any reason, they shall be canceled cancelled and exchanged for the applicable Siebel Merger ConsiderationConsideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.09 and Section 2.06(f), as applicable) with respect thereto in accordance with the procedures set forth in in, or as otherwise contemplated by, this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Stock six twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent or as otherwise instructed by Parent, upon demand, and any such holder who has not exchanged shares of Siebel Company Stock for the Siebel applicable Merger Consideration in accordance with this Section 3.10 2.06 prior to that such time shall thereafter look only to Parent for payment of the Siebel such Merger Consideration, Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect theretothereto as contemplated by Section 2.09 and Section 2.06(f), in respect of such shares as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including, after the Closing, the Surviving Company and its Subsidiaries) shall not be liable to any holder of shares of Siebel Company Stock for any amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.06, and in any event within two (2) Business Days of such surrender or transfer, the Exchange Agent shall promptly pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.09, as provided in Section 3.11applicable, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities2.06.
(g) Any portion The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Stock in connection with the Siebel Merger Consideration made available Mergers, and the filing of any related Tax Returns and other documentation with respect to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected such Taxes and fees, shall be returned to Parent, upon demandthe sole responsibility of such holder.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Eaton Vance Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Payment Agent”) for the purpose of (i) mailing acting as the payment agent in the Merger. Promptly following the Effective Time, Parent shall deposit and receiving Election Forms and determining, in accordance with this Article 3, make available to the form of Siebel Payment Agent the Merger Consideration to be received by each holder paid in respect of shares of Siebel Stock, and (iii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or and (Bii) for the uncertificated shares of Siebel Company Common Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel ) (but not any Merger Consideration to be issued or paid in respect of any Dissenting Shares as of the Certificates Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company Restricted Share Merger Consideration) (the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under Section 1.3(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit (or cause to be deposited) in trust additional cash with the Payment Agent sufficient to make all payments required under this Agreement (but not any Merger Consideration in respect of any Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company Option Merger Consideration, the Company RSU Merger Consideration or the Company Restricted Share Merger Consideration). All cash deposited with the Payment Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Uncertificated SharesEffective Time. Any income from investment of the Payment Fund will be payable to the Surviving Corporation. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall send, or the Surviving Corporation shall cause the Exchange Payment Agent to send, send to each record holder of Siebel shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary, any other Subsidiary of Parent, any Company Subsidiary, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal), whether represented by Certificates or Uncertificated Shares, a letter of transmittal transmittal, in form and substance reasonably acceptable to the Surviving Corporation, and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Payment Agent) for use in the exchange of such exchange; provided, that any such letter of transmittal shares for Merger Consideration pursuant to and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyin accordance with Section 1.3(b).
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration pursuant to and in accordance with Section 1.3(a) shall be entitled to receive, upon (i) surrender to the Exchange Payment Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Payment Agent (or such other evidence, if any, of transfer as the Exchange Payment Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Common Stock represented by a Certificate or Uncertificated Share. The shares ; provided, that receipt of Parent Stock constituting part an “agent’s message” shall be deemed to be an express acknowledgement that the holder of such Siebel Merger Consideration Uncertificated Shares has received and agrees to be bound by the terms of the letter of transmittal (if any), at Parent’s option, and shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawdeemed to have delivered an executed copy thereof). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration, and any holder of such shares of Company Common Stock shall cease to have any rights with respect thereto except to receive the Merger Consideration pursuant to Section 1.2(a). No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or Uncertificated Shares.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay in advance to the Exchange Payment Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Payment Agent that such taxes have Tax has been paid or are is not payable.
(d) After At the Effective Time, the stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately prior to the Effective Time and there shall be no further registration of transfers of shares of Siebel Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving CorporationCorporation or the Payment Agent, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10.Article I.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Payment Agent pursuant to Section 3.10(a1.3(a) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months one year after the Effective Time shall be returned to Parent Parent, upon demand, and thereafter any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 1.3 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Payment Agent shall not be liable to any holder of shares of Siebel Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier dateor, if earlier, immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable lawLaw, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Payment Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares 1.4 in respect of Siebel Stock for which appraisal rights have been perfected any Dissenting Shares shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Bazaarvoice Inc)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an agent reasonably satisfactory to the Company (the “Exchange Agent”"PAYING AGENT") for the purpose of exchanging certificates representing shares of Company Stock (ithe "CERTIFICATES") mailing and receiving Election Forms and determining, in accordance for the Merger Consideration. Parent will cause the Surviving Corporation to deposit with this Article 3, the form of Siebel Paying Agent the Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharesshares of Company Stock. Promptly after the Effective Time, Parent shall send, or shall will cause the Exchange Paying Agent to send, to each record holder of Siebel shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Stock that have been converted into the right to receive the Siebel Merger Consideration shall will be entitled to receive, upon (i) surrender to the Exchange Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Company Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)Certificate, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawwithout interest. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Paying Agent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Surviving Corporation and the Paying Agent that such taxes have Tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article.
(e) Any portion of the Siebel Merger Consideration made available by Parent to deposited with the Exchange Paying Agent pursuant to Section 3.10(a2.04(a) that remains unclaimed by the holders of shares of Siebel Company Stock six months one year after the Effective Time shall be returned to Parent Parent, upon demand, and any such holder who has not exchanged shares of Siebel Stock the Certificates for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Company Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) governmental authority shall become, to the extent permitted by applicable law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (International Aircraft Investors)
Surrender and Payment. (a) Prior to the Election Record Closing Date, Parent shall, at its sole cost and expense, (i) select a nationally recognized bank or trust company that is organized and doing business under the laws of the United States (the identity and terms of appointment of which shall appoint an be reasonably acceptable to the Company) to act as paying agent in the Mergers (the “Exchange Paying Agent”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available enter into a paying agent agreement, in form and substance reasonably acceptable to the Exchange Company, with such Paying Agent, as needed, . At or prior to the applicable Siebel Company Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall senddeposit, or cause to be deposited, (x) with the Paying Agent, cash in an amount sufficient to pay the aggregate Common Stock Merger Consideration (other than any consideration payable in respect of Company Restricted Stock) and Partnership Unit Merger Consideration required to be paid in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”) and (y) with the Company, cash in an amount sufficient to pay the aggregate Restricted Stock Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Company Compensatory Award Fund”). In the event the Exchange Fund or the Company Compensatory Award Fund shall be insufficient to make the payments in connection with the Company Merger and Partnership Merger contemplated by Section 3.01, Section 3.02 or Section 3.06, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Surviving Corporation, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Paying Agent shall deliver the Common Stock Merger Consideration and Partnership Unit Merger Consideration contemplated to be issued pursuant to Section 3.01 and Section 3.02 out of the Exchange Fund in accordance with the terms of the paying agent agreement. As soon as reasonably practicable after the Closing, Parent shall cause the Surviving Corporation to pay through payroll to the applicable holders of Company Restricted Stock Awards the Restricted Stock Consideration contemplated to be paid pursuant to Section 3.06 out of the Company Compensatory Award Fund. The Exchange Agent Fund and the Company Compensatory Award Fund shall not be used for any purpose other than to sendfund payments pursuant to Section 3.01 or Section 3.06, except as expressly provided for in this Agreement.
(b) As soon as reasonably practicable after the Company Merger Effective Time, and in any event not later than within five (5) Business Days following the Company Merger Effective Time, Parent and the Surviving Corporation will or will cause the Paying Agent, in accordance with, and as required by the Paying Agent’s customary procedures: to send to each record holder of Siebel (i) an outstanding share of Company Common Stock at as of immediately prior to the Company Merger Effective Time (other than the Cancelled Shares) or (ii) an outstanding Partnership Unit as of immediately prior to the Partnership Merger Effective Time (other than the Excluded Units) (A) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Common Stock Certificates (or transfer effective affidavits of the Uncertificated loss in lieu thereof as provided in Section 3.04), Common Stock Book-Entry Shares or Partnership Units, as applicable, to the Exchange Paying Agent) in customary form and with such other provisions, in each case as Parent and the Company may (prior to the Company Merger Effective Time or Partnership Merger Effective Time, as applicable) reasonably agree, for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder effecting delivery of shares of Siebel Company Common Stock that have been converted into or Partnership Units outstanding (x) immediately prior to the right Company Merger Effective Time and entitled to receive the Siebel Common Stock Merger Consideration or (y) immediately prior to the Partnership Merger Effective Time, as applicable, pursuant to Section 3.01 and Section 3.02, to the Paying Agent, and (B) instructions for use in effecting the surrender of Common Stock Certificates (or effective affidavits of loss in lieu thereof as provided in Section 3.04), Common Stock Book-Entry Shares or Partnership Units, as applicable, in exchange for the Common Stock Merger Consideration or Partnership Unit Merger Consideration, as applicable, which shall be entitled to receivecustomary in form and have such other provisions, upon in each case as Parent and the Company may (i) surrender prior to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, Company Merger Effective Time or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Partnership Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferredEffective Time, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Considerationapplicable) reasonably agree.
(c) If Upon the surrender of a Partnership Unit for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent, the holder of such Partnership Unit as of immediately prior to the Partnership Merger Effective Time shall be entitled to receive in exchange therefor and Parent and the Surviving Corporation shall cause the Paying Agent to pay in exchange therefor, as promptly as practicable (but in any portion event within five (5) Business Days) following the completion of the Siebel requirements of Section 3.03(b), an amount in cash equal to the product (rounded to the nearest cent) obtained by multiplying (i) the number of such Partnership Units by (ii) the Partnership Unit Merger Consideration, in each case pursuant to the provisions of this Article III, and the Partnership Units surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Partnership Units that is not registered in the transfer records of the Partnership, payment of the appropriate amount of Partnership Unit Merger Consideration is to may be paid made to a Person other than the Person in whose name the Partnership Unit so surrendered is registered, if such Partnership Unit shall be properly transferred. The Paying Agent will accept the Partnership Units upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with customary exchange practices. No interest shall be paid or accrue on any cash payable upon surrender of any Partnership Units.
(d) Upon the surrender of a Common Stock Certificate (or affidavit of loss in lieu thereof as provided in Section 3.04) or Common Stock Book-Entry Shares, as applicable, for cancellation to the Paying Agent (or, in the case of a Company Restricted Stock Award, to the Company), together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent or the Company, as applicable, the holder of such shares of Company Common Stock represented by such Common Stock Certificate as of immediately prior to the Company Merger Effective Time, or of such Common Stock Book-Entry Share immediately prior to the Company Merger Effective Time, as applicable, shall be entitled to receive in exchange therefor and Parent and the Surviving Corporation shall cause the Paying Agent (or, in the case of Company Restricted Stock Award, the Surviving Corporation) to pay in exchange therefor, as promptly as practicable (but in any event within five (5) Business Days) following the completion of the requirements of Section 3.03(b), an amount in cash equal to the product (rounded to the nearest cent) obtained by multiplying (i) the number of shares of Company Common Stock represented by such Common Stock Certificate or the transferred Uncertificated number of such Common Stock Book-Entry Shares by (ii) the Common Stock Merger Consideration, in each case pursuant to the provisions of this Article III, and the Common Stock Certificates, and Common Stock Book-Entry Shares surrendered shall forthwith be cancelled. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, payment of the appropriate amount of Common Stock Merger Consideration may be made to a Person other than the Person in whose name the Common Stock Certificate or Common Stock Book-Entry Share so surrendered is registered, if such Common Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Common Stock Book-Entry Share shall be properly transferred. The Paying Agent or the Company, as applicable will accept the Common Stock Certificates or Common Stock Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent or the Company, as applicable may impose to cause an orderly exchange thereof in accordance with customary exchange practices. No interest shall be paid or accrue on any cash payable upon surrender of any Common Stock Certificate or Common Stock Book-Entry Share.
(e) Prior to the Company Merger Effective Time, Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to endeavor that (i) if the Closing occurs at or prior to 2:00 p.m. (Eastern Time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Company Merger Effective Time multiplied by the Common Stock Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 2:00 p.m. (Eastern Time) on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.
(f) If any cash payment is to be made to a Person other than the Person in whose name the applicable surrendered Common Stock Certificate (which shall be properly endorsed or otherwise be in proper form for transfer), Common Stock Book-Entry Share (which shall be properly transferred) or Partnership Unit is registered, it shall be a condition to of such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay pay, or cause to the Exchange Agent be paid, any transfer Transfer Taxes or other taxes Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of such Certificate or Uncertificated the surrendered Common Stock Certificate, Common Stock Book-Entry Share or Partnership Unit or shall establish to the reasonable satisfaction of the Exchange Paying Agent that such taxes Taxes have been paid or are not payable.
(dg) After the Company Merger Effective Time, there shall be no further registration of transfers of shares of Siebel Company Common Stock that were outstanding immediately prior to the Company Merger Effective Time. From and after the Company Merger Effective Time, the outstanding shares of Company Common Stock that are cancelled pursuant to Section 3.02 represented by Common Stock Certificates immediately prior to the Company Merger Effective Time, and the Common Stock Book-Entry Shares outstanding immediately prior to the Company Merger Effective Time, will no longer be outstanding and will be cancelled automatically and cease to exist and each holder thereof shall cease to have any rights with respect to such shares of Company Common Stock, except as otherwise provided in this Agreement or by Applicable Law. If, after the Company Merger Effective Time, Common Stock Certificates or Uncertificated Common Stock Book-Entry Shares are presented to the Siebel Paying Agent, the Surviving CorporationCorporation or Parent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article III.
(eh) After the Partnership Merger Effective Time, there shall be no further transfers of Partnership Units that were outstanding immediately prior to the Partnership Merger Effective Time. From and after the Partnership Merger Effective Time, the outstanding Partnership Units that are cancelled pursuant to Section 3.01 will no longer be outstanding and will be cancelled automatically and cease to exist and each holder thereof shall cease to have any rights with respect to such Partnership Units, except as otherwise provided in this Agreement or by Applicable Law. If, after the Partnership Merger Effective Time, Partnership Units are presented to the Paying Agent, the Surviving Partnership or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
(i) Any portion of the Siebel Merger Consideration made available by Parent to Exchange Fund (including the proceeds of any investments in the Exchange Agent pursuant to Section 3.10(aFund) that remains unclaimed by the holders of shares of Siebel Company Common Stock six months or Partnership Units after the date which is one (1) year following the Company Merger Effective Time shall be returned delivered to Parent the Surviving Corporation or Surviving Partnership, as applicable, upon demand, and any such . Any holder of shares of Company Common Stock or Partnership Units who has not exchanged his, her or its shares of Siebel Company Common Stock for the Siebel Merger Consideration or Partnership Units in accordance with this Section 3.10 3.03 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger ConsiderationSurviving Corporation or Surviving Partnership, as applicable, and any dividends and distributions with respect thereto, only as general creditors thereof for delivery of their applicable pro rata Common Stock Merger Consideration or Partnership Unit Merger Consideration in respect of such holder’s shares without any interest thereonof Company Common Stock or Partnership Units, as applicable, upon compliance with the procedures set forth in this Section 3.03. Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation, the Partnership, the Surviving Partnership or any other Person shall not be liable to any Person, including any holder of shares of Siebel Company Common Stock, Company Restricted Stock Awards or Partnership Units, including for any amounts paid payable under this Article III that are properly delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining portion of the Exchange Fund (including the proceeds of any investments in the Exchange Fund) that remains unclaimed by the holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, Partnership Units immediately prior to the time at which such time when the amounts would otherwise escheat to to, or become the property of of, any Governmental Entity) shall becomeAuthority shall, to the extent permitted by applicable lawApplicable Law, become the property of Parentthe Surviving Corporation or Surviving Partnership, as applicable, free and clear of any claims or interest of any Person such holders or their successors, assigns or personal representatives previously entitled thereto.
(fj) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, The Paying Agent shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of invest any cash payable included in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date Exchange Fund as directed by Parent or, after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Company Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses below the level required to make prompt payments of the Common Stock Merger Consideration and the Partnership Unit Merger Consideration as contemplated hereby, the Surviving Corporation shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Common Stock or Partnership Units in the amount of such losses, so as to ensure that the Exchange Agent Fund is, at all times, maintained at a level sufficient to make all such payments, (ii) no such investment shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock have maturities that could prevent or delay payments to be canceled made pursuant to Section 3.01(a)this Agreement and (iii) for such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to Parent or its designee as directed by ▇▇▇▇▇▇.
(k) All Common Stock Merger Consideration or Partnership Unit Merger Consideration paid upon conversion or surrender of the shares of Parent Company Common Stock, Company Restricted Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock Awards or Partnership Units, as applicable, in accordance with Section 251(g) the terms of DGCL.this Agreement, shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares of Company Common Stock, Company R
Appears in 1 contract
Sources: Merger Agreement (Retail Opportunity Investments Partnership, LP)
Surrender and Payment. (a) Prior to As promptly as practicable after the Election Record Datedate of this Agreement, Parent (i) the Equityholders’ Representative shall appoint and retain (as an agent of the Equityholders’ Representative) an agent (the “Exchange Agent”), which Exchange Agent shall be reasonably satisfactory to Parent, and enter into an agreement on terms reasonably satisfactory to the Equityholders’ Representative and Parent (the “Exchange Agent Agreement”) for the purpose of (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, exchanging the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration for (A) for certificates representing the shares of Siebel Company Common Stock and Company Preferred Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Company Common Stock and Company Preferred Stock (the “Uncertificated Shares”). Parent shall make available to ) and (ii) the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time, Parent shall send, or Equityholders’ Representative shall cause the Exchange Agent to send, mail to each record holder of Siebel Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder record of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of and Company Preferred Stock a Certificate, together with a properly completed letter of transmittal, or the form of which shall be mutually agreed upon by Company and Parent and shall include customary representations and warranties, including with respect to ownership of, and title to, shares of Company Common Stock and Company Preferred Stock free and clear of Liens (ii) receipt other than transfer restrictions under U.S. securities laws), and, with respect to Qualified Investors, customary “private placement” representations and warranties (including acknowledgement of an “agent’s message” transfer restrictions under U.S. securities laws), waiver of appraisal rights, release of claims, confidentiality and publicity restrictions and agreement to be bound by the Exchange Agent indemnification provisions of Article X (the “Letter of Transmittal”), to be completed and delivered by each Equityholder, along with such Equityholder’s Certificate(s) (or such other evidence, if any, evidence of transfer as the Exchange Agent may reasonably request) request in the case of a book-entry transfer of Uncertificated Shares), properly completed and duly executed tax forms (collectively, the Siebel “Required Shareholder Deliveries”), to effect the exchange of such Equityholder’s shares of Company Common Stock and Company Preferred Stock for the payment of the Merger Consideration payable or deliverable pursuant to Section 2.04 and Section 2.12 in respect of such shares of Company Common Stock and Company Preferred Stock. If the Siebel Stock represented Required Shareholder Deliveries are returned to the Exchange Agent by an Equityholder at least two (2) Business Days prior to the Closing Date, Parent and the Company shall direct the Exchange Agent to cause payment to be made to such Equityholder in accordance with Section 2.04 and Section 2.12 on the Closing Date (or as promptly thereafter as possible).
(b) At the Closing, Parent or Merger Sub shall deliver or cause to be delivered (i) by wire transfer of immediately available funds to the Exchange Agent (as agent of the Equityholders’ Representative), in trust for the benefit of the Equityholders entitled thereto, the Closing Cash Consideration and (ii) to the Exchange Agent (as agent of the Equityholders’ Representative), in trust for the benefit of the Equityholders entitled thereto, the Closing Equity Consideration.
(c) Parent shall take all reasonably necessary action on its part such that the issuance of the Closing Equity Consideration pursuant to this Agreement shall be stamped or otherwise imprinted or legended with a legend in substantially the following form, in addition to any other applicable legends until the expiration of the Lock-Up Period (as defined in the Support Agreement or Lock-Up Agreement, as applicable to such Equityholder): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A [SUPPORT AGREEMENT / LOCK-UP AGREEMENT], DATED AS OF [●], 2025, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND CERTAIN OF THE ISSUER’S SECURITY HOLDERS NAMED THEREIN, AS AMENDED (THE [“SUPPORT AGREEMENT” / “LOCK-UP AGREEMENT”]), AND CANNOT BE TRANSFERRED BY THE HOLDER HEREOF EXCEPT AS CONTEMPLATED BY THE [SUPPORT AGREEMENT/ LOCK-UP AGREEMENT] OR WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER (WHICH IT MAY, ACTING IN GOOD FAITH, WITHHOLD IN ITS SOLE AND ABSOLUTE DISCRETION). A COPY OF THE [SUPPORT AGREEMENT / LOCK-UP AGREEMENT] WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(d) Upon surrender of any Certificate or transfer of any Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested Share by a holder of Company Common Stock or Company Preferred Stock and the delivery of the other Required Shareholder Deliveries to the Exchange Agent, an Equityholder whose shares of Siebel Company Common Stock and Company Preferred Stock have been converted into the right to receive the applicable portion of the Merger Consideration shall be entitled (i) to promptly receive from the Exchange Agent the portion of the Closing Cash Consideration to which such Equityholder is entitled pursuant to Section 2.04 and Section 2.12, (ii) to promptly receive from the Exchange Agent the portion of the Closing Equity Consideration to which such Equityholder is entitled pursuant to Section 2.04 and Section 2.12, and (iii) to receive from the Exchange Agent the portion of the remainder of the Merger Consideration payable or is otherwise required under applicable lawdeliverable, as applicable, for each such Equityholder’s shares of Company Common Stock and Company Preferred Stock in the manner and at (or promptly following) the times paid or delivered to the Exchange Agent, in trust for the benefit of the Equityholders entitled thereto, as set forth in this Agreement and the Escrow Agreement. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share (other than the Disregarded Shares and Dissenting Shares) shall represent after the Effective Time for all purposes only the right to receive the consideration to be paid pursuant to Section 2.04 and Section 2.12, and any shares of Company Common Stock and Company Preferred Stock represented by each such Siebel Certificate or Uncertificated Share shall be canceled and cease to exist. If, after the Effective Time, Certificates or Uncertificated Shares (other than such Certificates or Uncertificated Shares representing the Disregarded Shares and Dissenting Shares) are presented to Parent, the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the portion of the Merger Consideration to be paid pursuant to Section 2.04 and Section 2.12, including the procedures set forth in this Article II, and shall be deemed only to represent the right to receive such consideration. If any such Equityholder does not deliver to the Exchange Agent the Required Shareholder Deliveries by the first anniversary of the Effective Time, then the Exchange Agent shall return to Parent the portion of the Closing Cash Consideration and Closing Equity Consideration to which such Equityholder would otherwise be entitled pursuant to Section 2.04 and Section 2.12, and thereafter such Equityholder shall look only to Parent for payment of such portion of the Closing Cash Consideration and Closing Equity Consideration. Notwithstanding the foregoing, none of Parent, Merger Sub or the Exchange Agent shall be liable to any Equityholder for any amounts paid without manifest error to a public official pursuant to applicable abandoned property, escheat or similar Applicable Laws.
(ce) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred transferred, with evidence reasonably satisfactory to Parent and (ii) the Person requesting such payment shall pay to the Exchange Agent Parent any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent Parent that such taxes have Tax has been paid or are is not payable.
(df) After the Effective Time, the transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Siebel Company Common Stock or Company Preferred Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(eg) Any After the Effective Time and subject to the last sentence of Section 2.06(d), each Equityholder shall look only to the Exchange Agent and the Equityholders’ Representative for payment or delivery of the portion of the Siebel Merger Consideration made available payable pursuant to Section 2.04, Section 2.11, Section 2.12 and Article X and the other amounts payable pursuant to this Agreement, in each case, in respect of shares of Company Common Stock or Company Preferred Stock. Notwithstanding anything to the contrary contained herein but subject to the penultimate sentence of Section 2.06(d), payment by or on behalf of Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by or the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration Equityholders’ Representative in accordance with this Section 3.10 prior to that time Agreement shall thereafter look only to Parent for payment be in full satisfaction of the Siebel Merger Consideration, obligations of Parent and any dividends and distributions its Affiliates with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretopayment.
(fh) No Except as required by Applicable Law, no dividends or other distributions with respect to Parent Stock constituting part shares of capital stock of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Surviving Corporation with a record date after the Effective Time previously shall be paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesany Equityholder.
(gi) Any portion All consideration paid in respect of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) surrender or Section 3.11 to pay for exchange of shares of Siebel Company Common Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Company Preferred Stock in accordance with Section 251(gthe terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such shares.
(j) For the avoidance of DGCLdoubt, no interest will be paid or accrued on the Merger Consideration or any payments thereof to the Equityholders.
Appears in 1 contract
Sources: Merger Agreement (StoneX Group Inc.)
Surrender and Payment. (a) Prior At least two (2) Business Days prior to the Election Record Closing Date, the Company shall deliver to Parent shall appoint an agent its good faith estimate of the Aggregate Merger Consideration (the “Exchange AgentEstimated Aggregate Merger Consideration”), including an estimate of the outstanding amount of Indebtedness of the Company as of the Closing (the “Estimated Indebtedness”), the aggregate amount of Holder Transaction Expenses (the “Estimated Holder Transaction Expenses”) and the amount of Net Working Capital, in each case including reasonable support for its calculation of the purpose Estimated Aggregate Merger Consideration (and the outstanding amount of Indebtedness of the Company as of the Closing, the aggregate amount of Holder Transaction Expenses, and the amount of Net Working Capital). The calculation of the Estimated Aggregate Merger Consideration (and the components thereof) shall be prepared in accordance with the Agreed Accounting Principles. In addition, at least five (5) Business Days prior to the Closing Date, the Company shall deliver to Parent (i) mailing and receiving Election Forms and determiningan itemized list of all Indebtedness of the Company as of the Closing, in accordance with this Article 3including the amount of such Indebtedness as of the Closing (broken down by Person to whom such Indebtedness is owed), the form Person to whom such Indebtedness is owed and wire instructions for such Person to whom such Indebtedness is owed (the “Indebtedness Pay-Off Schedule”); provided that the amount of Siebel Merger Consideration to be received by each holder Indebtedness reflected on the Indebtedness Pay-Off Schedule shall not exceed the amount of shares of Siebel Stockthe Estimated Indebtedness, and (ii) exchanging an itemized list of all Holder Transaction Expenses, including the applicable Siebel Merger Consideration amount of such Holder Transaction Expenses (A) broken down by Person to whom such Holder Transaction Expenses are payable), the Person or Persons to whom such Holder Transaction Expenses are owed and wire instructions for certificates representing shares of Siebel Stock such Person or Persons to whom such Holder Transaction Expenses are owed (the “CertificatesHolder Transaction Expenses Schedule”); provided that the amount of Holder Transaction Expenses reflected on the Holder Transaction Expenses Schedule shall not exceed the amount of the Estimated Holder Transaction Expenses.
(b) or (B) for uncertificated shares Prior to the Closing Date, Parent, the Representative and the Paying Agent will enter into a paying agent agreement in substantially the form of Siebel Stock Exhibit B attached hereto (the “Uncertificated SharesPaying Agent Agreement”). Parent shall make available ) pursuant to which the Paying Agent will act as paying agent in connection with the consideration to be paid to the Exchange Stockholders pursuant to the Paying Agent Agreement. The Paying Agent, as needed, the applicable Siebel Merger Consideration to ’s fees and expenses shall be issued or paid in respect of the Certificates and the Uncertificated Sharesborne by Parent. Promptly after the Effective Time, the Parent shall senddeliver (i) a Letter of Transmittal (which includes an election form that provides for the Stockholders to make their respective Allocation Elections) in substantially the form of Exhibit C hereto to the Stockholders, and a Letter of Transmittal (which includes an election form that provides for the Warrantholders to make their respective Allocation Elections) in substantially the form of Exhibit D hereto to the Warrantholders (collectively, the “Letters of Transmittal”), entitled to receive a portion of the Aggregate Merger Consideration in respect of their shares of Company Common Stock or Company Preferred Stock or in respect of their Warrants, (ii) an Option Cancellation Agreement (which agreement includes an election form that provides for the Optionholders to make their respective Allocation Elections) in the form attached hereto as Exhibit E (the “Non-Employee Option Cancellation Agreement”) hereto to the holders of Vested Options who are not employees of the Company entitled to receive a portion of the Aggregate Merger Consideration in respect of their Vested Options, (iii) to the holders of Vested Options who are employees of the Company and entitled to receive a portion of the Aggregate Merger Consideration in respect of their Vested Options, an Option Cancellation Agreement (which agreement includes an election form that provides for the Optionholders to make their respective Allocation Elections) in the form of Exhibit F hereto (together with the Non-Employee Option Cancellation Agreements, the “Option Cancellation Agreements”), and (iv) to the holders of Unvested Options who are entitled to receive Parent Options in respect of their Unvested Options, an Option Agreement in the form of Exhibit G hereto (the “Parent Option Agreement”).
(c) At the Closing, Parent shall deliver or pay, or shall cause the Exchange Surviving Corporation to deliver or pay, in cash by wire transfer of immediately available funds and net of the Deposit Amount (which shall be paid to the Paying Agent by the Company prior to sendthe Closing), the Closing Cash Consideration (based on the Estimated Aggregate Merger Consideration), the Escrow Amount, the balance of amounts of the Indebtedness identified on the Indebtedness Pay-Off Schedule (other than up to $1,400,000 of Indebtedness owed to Company Bank) and outstanding Holder Transaction Expenses as follows:
(i) (A) the Indemnity Escrow Amount shall be deposited into an escrow account (the “Indemnity Escrow Account”), (B) the Working Capital Escrow Amount shall be deposited into an escrow account (the “Working Capital Escrow Account”), and (C) the Representative Cost Escrow Amount shall be deposited into an escrow account (the “Representative Cost Escrow Account”) in each case, on behalf of Parent and the Holders, which accounts shall be established pursuant to the Escrow Agreement;
(ii) all amounts necessary to fully discharge the then-outstanding balances of the Indebtedness identified on the Indebtedness Pay-Off Schedule (other than up to $1,400,000 of Indebtedness owed to Company Bank) and the Pay-Off Letters shall be paid on behalf of the Company to the applicable creditors’ accounts set forth in Indebtedness Pay-Off Schedule and the Pay-Off Letters or as otherwise advised by such creditors in writing; provided that the amount of payments pursuant to this Section 1.05(c)(ii) shall not exceed the amount of the Estimated Indebtedness (excluding $1,400,000 in Indebtedness owed to the Company Bank);
(iii) all amounts necessary to fully discharge the then-outstanding balances of Holder Transaction Expenses identified on the Holder Transaction Expenses Schedule and the Pay-Off Letters shall be paid on behalf of the Company to the accounts designated by the Persons owed such amounts as set forth in the Pay-Off Letters and on the Holder Transaction Expenses Schedule; provided that the amount of payments pursuant to this Section 1.05(c)(iii) shall not exceed the amount of the Estimated Holder Transaction Expenses;
(iv) the aggregate cash consideration to be paid to Stockholders pursuant to Section 1.04 shall be paid to the Paying Agent, for payment, in accordance with such Section, to each record holder Stockholder who has completed and returned to the Paying Agent a properly completed and executed Letter of Siebel Transmittal (including a Lock-Up Agreement executed by any Stockholder who elects to receive Closing Consideration Shares in accordance with Section 1.04), together with the Company Stock at Certificates (or an affidavit of lost stock certificate in form reasonably acceptable to Parent) representing such Stockholder’s outstanding shares of Company Stock;
(v) the Effective Time a letter of transmittal and instructions aggregate cash consideration (which shall specify that other than Option Closing Consideration to be paid to Optionholders who received their Option in connection with current or past employment with the delivery Company (“Employee Optionholders”)) to be paid to Optionholders pursuant to Section 1.04 shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares paid to the Exchange Agent) Surviving Corporation for use in payment to each such exchange; provided, that Holder who has completed and returned to the Parent a properly completed and executed Option Cancellation Agreement (including a Lock-Up Agreement executed by any such letter of transmittal and instructions shall be sent Optionholder who elects to holders of Uncertificated receive Closing Consideration Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.in accordance with Section 1.04) ; and
(bvi) Each holder of shares of Siebel Stock that have been converted into the aggregate Closing Option Consideration to be paid to Employee Optionholders whose Vested Options represent the right to receive payment in cash pursuant to Section 1.04 shall be paid to the Siebel Merger Surviving Corporation and such proceeds shall then be paid to such Holders of Options through the Surviving Corporation’s payroll system as provided in Section 1.05(h) below, provided that such Holder has completed and returned to the Parent a properly completed and executed Option Cancellation Agreement (including a Lock-Up Agreement executed by any such Optionholder who elects to receive Closing Consideration Shares in accordance with Section 1.04).
(d) After the Effective Time, Parent shall promptly deliver (i) to the Paying Agent, for delivery to each Stockholder who has completed and returned to the Paying Agent a Letter of Transmittal (including a Lock-Up Agreement executed by any Stockholder who elects to receive Closing Consideration Shares in accordance with Section 1.04 ) together with the Company Stock Certificates representing outstanding shares of Company Stock or an affidavit of lost stock certificate in form reasonably acceptable to Parent, and (ii) to the Surviving Corporation for delivery to each Optionholder (other than Unvested Optionholders) who has completed and returned to Parent an Option Cancellation Agreement and to each Warrantholder who has completed and returned to the Parent a Letter of Transmittal (including a Lock-Up Agreement executed by any such Optionholder or Warrantholder who elects to receive Closing Consideration Shares in accordance with Section 1.04), a certificate representing the number of Closing Consideration Shares (rounded down to the nearest share) issuable to each such Holder based on the Allocation Election set forth in such Holder’s Letter of Transmittal or Option Cancellation Agreement, as applicable. In lieu of any fractional share of a Parent Share that a Holder would have received had the number of Parent Shares not been rounded down, each such Holder shall be paid (and after taking into account and aggregating shares of Company Stock represented by all Company Stock Certificates surrendered by, or Vested Options or Warrants held by, such Holder) cash (without interest) in an amount equal to the product obtained by multiplying (x) the fractional share interest to which such Holder (after taking into account and aggregating all shares of Company Stock represented by all Company Stock Certificates surrendered by, or Vested Options or Warrants held by, such Holder) would otherwise be entitled by (y) the Parent Stock Value.
(e) The Closing Consideration Shares issued pursuant to the terms of this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and may not be re-offered or resold other than in conformity with the registration requirements of the Securities Act and such other applicable rules and regulations or pursuant to an exemption therefrom. Until the resale by the Holders of their Parent Shares has become registered (including pursuant to the Registration Statement) under the Securities Act, or otherwise transferable pursuant to an exemption from such registration otherwise required thereunder, the Parent Shares issued to the Holders hereunder shall be characterized as “restricted securities” under the Securities Act and, if certificated, shall bear the following legend (or if held in book entry form, will be noted with a similar restriction): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.”
(f) As promptly as practicable following the Effective Time, Parent shall deliver to each Stockholder and each holder of Vested Options and Warrants a copy of the Disclosure Materials and the applicable Letter of Transmittal, and Parent shall (i) cause the Paying Agent to deliver to each Stockholder who has completed a Letter of Transmittal (including a Lock-Up Agreement if applicable) and returned it to the Paying Agent, together with any applicable Company Stock Certificate (or affidavit of lost stock certificate in form reasonably acceptable to Parent) a check (or if elected by such Holder, a wire transfer) representing that portion of the Closing Cash Consideration to which such Holder is entitled, and (ii) cause the Surviving Corporation to deliver to each Optionholder or Warrantholder who has executed and completed an Option Cancellation Agreement or Letter of Transmittal, respectively (including a Lock-Up Agreement, if applicable) and returned it to the Parent, a check (or if elected by such Holder, a wire transfer) representing that portion of the Closing Cash Consideration to which such Holder is entitled. The delivery of such checks (or wire transfers, as applicable) by the Paying Agent or Surviving Corporation, as applicable, shall be deemed, for all purposes, to have satisfied in full the obligations of Parent to pay the Closing Cash Consideration to such Holders and Parent shall have no further obligation for such payments. Notwithstanding anything to the contrary in this Agreement (i) Parent shall not be required to pay any amount of the Closing Cash Consideration or the Closing Consideration Shares to any Stockholder until receipt from such Stockholder of a properly completed and executed Letter of Transmittal (including a Lock-Up Agreement) and the applicable Company Stock Certificate or an affidavit of lost stock certificate in form reasonably acceptable to Parent, (ii) Parent shall not be required to pay any amount of the Closing Cash Consideration or the Closing Consideration Shares to any Warrantholder until receipt from such Warrantholder of a properly completed and executed Letter of Transmittal (including a Lock-Up Agreement), (iii) Parent shall not be required to pay any amount of the Closing Cash Consideration or the Closing Consideration Shares to any Optionholder holding Vested Options until receipt from such Optionholder of a properly completed and executed Option Cancellation Agreement, and (iv) Parent shall not be required to issue any Parent Options to any Optionholder holding Unvested Options until receipt from such Optionholder of a properly completed and executed Parent Option Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, Parent shall not (through the Paying Agent or otherwise) pay any Closing Cash Consideration or Closing Consideration Shares to the Principals, other than the Principal Initial Consideration, until each other Holder (other than Unvested Optionholders) shall have submitted to the Paying Agent or the Surviving Corporation, as applicable, a completed and executed Letter of Transmittal or Option Cancellation Agreement, as applicable, setting forth each Holder’s respective Allocation Elections. The Principal Final Consideration shall be entitled paid to receive, upon the Principals by the Paying Agent within five (5) Business Days after the earlier of (i) surrender the date on which all of the other Holders (other than Unvested Optionholders) shall have submitted to the Exchange Paying Agent a completed and executed Letter of a CertificateTransmittal setting forth each Holder’s respective Allocation Elections, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” the date on which all Holders will be deemed to have made their respective Allocation Elections by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect reason of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares last sentence of Section 1.04(g).
(h) As promptly as practicable following the Effective Time, Parent Stock constituting part shall cause the Surviving Corporation to pay, through the Company’s payroll system, to each Optionholder holding Vested Options who is, immediately prior to the Effective Time, an employee of the Company, and who has completed and returned to the Paying Agent an Option Cancellation Agreement, that portion of the Closing Cash Consideration to which such Siebel Merger Consideration Optionholder is entitled pursuant to Section 1.04.
(if any), at Parent’s option, shall be i) Until surrendered in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable law. Until so surrendered or transferred, as the case may beaccordance with this Agreement, each such Certificate or Uncertificated Share Company Stock Certificate, each of the Options and each of the Warrants shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesAgreement.
(gj) Any portion of As promptly as possible, but in any event within sixty (60) days after the Siebel Merger Consideration made available Closing Date, Parent shall deliver to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.Representativ
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an as the exchange agent (or such other nationally recognized exchange agent agreed to between the parties) (the “Exchange Agent”) to act as agent for the Company’s stockholders who shall become entitled to receive funds pursuant to this Agreement, including as agent for the purpose of (i) mailing and receiving Election Forms and determiningexchanging for the Merger Consideration, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Company Common Stock (the “Certificates”) or (B) for uncertificated ;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Siebel Stock Company Common Stock). At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent (the “Uncertificated SharesPayment Fund”) an amount in cash equal to the sum of the aggregate Merger Consideration and the aggregate Cash Amount (the “Aggregate Merger Consideration”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall make available promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, as needed, in connection with the applicable Siebel exchange of shares of Company Common Stock and the payment of the Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Sharessuch shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Siebel shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent) Agent for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receivereceive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly duly completed and validly executed letter of transmittaltransmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part Company Common Stock, and, in each case, delivery to the Exchange Agent of such Siebel Merger Consideration (if any), at Parent’s option, shall other documents as may reasonably be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawthe Exchange Agent. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Siebel Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(d) After All Merger Consideration paid upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate and from and after the Effective Time, there shall be no further registration of transfers of shares of Siebel StockCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger ConsiderationConsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 2.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Payment Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six twelve (12) months after the Effective Time shall be returned delivered to Parent the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Siebel Company Common Stock for the Siebel Merger Consideration in accordance with this Section 3.10 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable lawApplicable Law, the property of ParentParent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Agreement and Plan of Merger (RMG Networks Holding Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, --------------------- Parent shall appoint American Stock Transfer & Trust Co. or such other exchange agent reasonably acceptable to the Company (the "Exchange Agent") for the -------------- purpose of exchanging Certificates for the Merger Consideration. At the Effective Time, Parent shall appoint an agent (deposit with the “Exchange Agent”) , for the purpose benefit of (i) mailing and receiving Election Forms and determining, the holders of the Certificates for exchange in accordance with this Article 3I, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Parent Common Stock (issuable pursuant to this Article I upon surrender of the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, Agent from time to time as needed, required after the applicable Siebel Merger Consideration Effective Time cash necessary to be issued or paid pay dividends and other distributions in respect accordance with this Article I and to make payments in lieu of the Certificates and the Uncertificated Sharesany fractional shares of Parent Common Stock in accordance with Section 1.6. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each record holder of Siebel record of shares of Company Common Stock at as of the Effective Time Time, a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in such exchange; provided, that any such letter effecting delivery of transmittal and instructions shall be sent to holders shares of Uncertificated Shares only Company Common Stock to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyAgent.
(b) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by will be entitled to promptly receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel shares of Company Common Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawCertificate. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Consideration.
(c) If any portion of the Siebel Merger Consideration is to be paid issued to or registered in the name of a Person (as defined below) other than the Person in whose name the applicable surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment issuance or registration that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to issuance or registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of the Exchange Agent that such taxes have tax has been paid or are is not payable. For purposes of this Agreement, "Person" means an individual, a corporation, a limited liability company, a ------ partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of transfers of shares of Siebel Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Surviving Corporation, they shall be canceled and exchanged for the applicable Siebel Merger Consideration, in accordance with the procedures set forth in this Section 3.10.
(e) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to Parent Stock constituting part of the Siebel Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
(g) Any portion of the Siebel Merger Consideration made available to the Exchange Agent pursuant to Section 3.10(a) or Section 3.11 to pay for shares of Siebel Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock in accordance with Section 251(g) of DGCL.
Appears in 1 contract
Sources: Merger Agreement (Cmi Corp)
Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent shall appoint an Mellon Investor Services LLC as the exchange agent (the “Exchange Agent”) and promptly following the Effective Time shall cause to be deposited with the Exchange Agent, in trust for the purpose benefit of (i) mailing the holders of Company Common Stock, an amount of cash in U.S. dollars sufficient to pay, and receiving Election Forms shall make available to the Exchange Agent certificates representing the shares of Parent Common Stock sufficient to issue, the Per Share Consideration payable and determiningissuable pursuant to Section 3.01 and the Cashed Out Award Consideration payable pursuant to Section 3.06, payable, in accordance with the case of Company Common Stock, upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) and payable pursuant to the provisions of this Article 3. Following the Effective Time, the form of Siebel Merger Consideration Parent agrees to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A) for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”). Parent shall make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay any dividends and other distributions pursuant to Section 3.02(g). Any cash and certificates representing Parent Common Stock deposited with the applicable Siebel Merger Exchange Agent (including the amount of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to be paid pursuant to Section 3.03) shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Per Share Consideration contemplated to be issued or paid in respect pursuant to Section 3.01 and the Cashed Out Award Consideration contemplated to be issued pursuant to Section 3.06(a) out of the Certificates Exchange Fund. Except as contemplated by this Section 3.02, the Exchange Fund shall not be used for any other purpose.
(b) As soon as reasonably practicable after the Effective Time and in any event not later than the Uncertificated Shares. Promptly after second Business Day following the Effective Time, Parent shall send, or shall will cause the Exchange Agent to send, send to each record holder of Siebel record of shares of Company Common Stock at (other than the Effective Time Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form as Parent and the Company may reasonably agree, for use in such exchange; providedeffecting delivery of shares of Company Common Stock to the Exchange Agent, that and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Per Share Consideration. Exchange of any such letter of transmittal and instructions Book-Entry Shares shall be sent effected in accordance with Parent’s customary procedures with respect to holders of Uncertificated Shares only to the extent determined necessary securities represented by Oracle and the Exchange Agent to effect the transactions contemplated herebybook entry.
(bc) Each holder of shares of Siebel Company Common Stock that have been converted into the a right to receive the Siebel Merger Per Share Consideration shall will be entitled to receive, upon receive in exchange therefor (iA) surrender to the Exchange Agent one or more shares of a Certificate, together with a properly completed letter of transmittal, or Parent Common Stock (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) which shall be in the case of a non-certificated book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any), at Parent’s option, shall be in uncertificated book-entry form, form unless a physical certificate is requested by a holder requested) representing, in the aggregate, the whole number of shares of Siebel Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 3.01 (after taking into account all shares of Company Common Stock then held by such holder) and/or (B) a check in the amount equal to the cash portion of the Per Share Consideration that such holder has the right to receive pursuant to Section 3.01 and this Article 3, including cash payable in lieu of fractional shares pursuant to Section 3.03 and dividends and other distributions pursuant to Section 3.02(g) (less any required Tax withholding). Each holder of a Cashed Out Compensatory Award that has been converted into a right to receive cash will be entitled to receive in exchange therefor a check in the amount equal to the Cashed Out Award Consideration that such holder has the right to receive pursuant to Section 3.06(a) and this Article 3 (less any required Tax withholding). No interest shall be paid or is otherwise required under applicable lawaccrued on any Per Share Consideration or Cashed Out Award Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates or Company Stock Options. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, after the Effective Time Time, represent for all purposes only the right to receive such Siebel Merger Per Share Consideration.
(cd) If any portion of the Siebel Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition of such payment that the Person requesting such payment shall pay any transfer Taxes required by reason of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or shall establish to the transferred Uncertificated satisfaction of the Exchange Agent that such Tax has been paid or is not payable. If any portion of the Per Share Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to such payment the registration thereof that (i) either such the surrendered Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment delivery of the Per Share Consideration shall pay to the Exchange Agent any transfer or other taxes Taxes required as a result of such payment to registration in the name of a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such taxes have Tax has been paid or are is not payable.
(de) After the Effective Time, there shall be no further registration of transfers Transfers of shares of Siebel Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Siebel Exchange Agent, the Interim Surviving CorporationCorporation or Parent, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Considerationconsideration provided for, and in accordance with the procedures set forth forth, in this Section 3.10Article 3.
(ef) Any portion of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) Fund that remains unclaimed by the holders of shares of Siebel Company Common Stock six months or holders of Cashed Out Compensatory Awards after the one-year anniversary of the Effective Time shall be returned to Parent Parent, upon demand, and any such . Any holder of shares of Company Common Stock who has not exchanged his shares of Siebel Company Common Stock for the Siebel Merger Per Share Consideration in accordance with this Section 3.10 3.02 and any holder of a Cashed Out Compensatory Award who has not received the Cashed Out Award Consideration in accordance with Section 3.06(a) prior to that time shall thereafter look only to Parent for payment delivery of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, Per Share Consideration or Cashed Out Award Consideration in respect of such holder’s shares without any interest thereonof Company Common Stock or Cashed Out Compensatory Award. Notwithstanding the foregoing, Parent neither Parent, the Company nor the Interim Surviving Corporation shall not be liable to any Company Common Stock or holder of shares of Siebel Stock Cashed Out Compensatory Awards for any amounts paid Per Share Consideration or Cashed Out Award Consideration properly delivered to a public official pursuant to applicable abandoned property, escheat or similar property laws. Any amounts Per Share Consideration or Cashed Out Award Consideration remaining unclaimed by holders of shares of Siebel Company Common Stock two years after the Effective Time (or such earlier date, holders of Cashed Out Compensatory Awards immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeAuthority shall, to the extent permitted by applicable lawApplicable Law, the become property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(fg) No dividends or other distributions with respect to shares of Parent Common Stock constituting part of issued in the Siebel First Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.11, shall be paid to the holder of any unsurrendered Certificates not surrendered or of any Uncertificated Book-Entry Shares not transferred until such Certificates or Uncertificated Book-Entry Shares are surrendered or transferred, as the case may be, as provided in this SectionSection 3.02. Following such surrender surrender, subject to the effect of escheat, Tax or transferother Applicable Law, there shall be paid, without interest, to the Person in whose name record holder of the securities shares of Parent have been registered, Common Stock issued in exchange therefor (i) at the time of such surrender or transfersurrender, the an amount of any cash equal to all dividends and other distributions payable in lieu respect of fractional such shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions Parent Common Stock with a record date after the Effective Time previously paid and a payment date on or payable on prior to the date of such surrender with respect to such securities and not previously paid and (ii) at the appropriate payment date, an amount equal to the amount of dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time and prior to surrender or transfer and but with a payment date subsequent to surrender such surrender. For purposes of dividends or transfer payable with other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to such securitiesbe issued pursuant to the First Merger (the “Stock Issuance”) and all shares of Parent Common Stock to be issued pursuant to Section 3.06(a) shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(gh) Any portion of the Siebel Merger Per Share Consideration made available to deposited with the Exchange Agent pursuant to this Section 3.10(a) or Section 3.11 3.02 to pay for shares of Siebel Stock for which appraisal rights shall have been perfected shall be returned to Parent, upon demand.
(hi) Certificates representing shares All Per Share Consideration or Cashed Out Award Consideration issued and paid upon conversion of Oracle the Company Common Stock immediately prior to or the Initial Effective Time shallCashed Out Compensatory Awards, from and after respectively, in accordance with the Initial Effective Time, represent the shares terms of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Agent shall exchange by book entry transfer all uncertificated shares of Oracle Stock this Agreement (excluding including any shares of Oracle Stock to be canceled cash paid pursuant to Section 3.01(a3.03)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates , shall be deemed to have been issued and paid in exchange for Oracle full satisfaction of all rights pertaining to such Company Common Stock in accordance with Section 251(g) of DGCLor Cashed Out Compensatory Awards, respectively.
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Surrender and Payment. (a) Prior to the Election Record DateEffective Time, Parent the holders of TBC Shares shall appoint an agent (IMR General to act as the “Exchange Agent”) Payment Agent for the purpose of exchanging certificates representing TBC Shares that are not Dissenting Shares (i) mailing and receiving Election Forms and determining, in accordance with this Article 3, the form of Siebel Merger Consideration to be received by each holder of shares of Siebel Stock, and (ii) exchanging the applicable Siebel Merger Consideration (A"CERTIFICATES") for certificates representing shares of Siebel Stock (the “Certificates”) or (B) for uncertificated shares of Siebel Stock (the “Uncertificated Shares”)Merger Consideration. Parent shall make available to the Exchange Agent, as needed, the applicable Siebel Merger Consideration to be issued or paid in respect of the Certificates and the Uncertificated Shares. Promptly after At the Effective Time, Parent the Buyer shall send, deposit or shall cause to be deposited with the Exchange Payment Agent to send, funds in the amount of the Purchase Price (the "FUNDS"). The Payment Agent will send to each record holder of Siebel Stock at the Effective Time TBC Shares a letter of transmittal (or other appropriate notification and instructions transmittal document) for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer to the Payment Agent). The Payment Agent shall instruct TBC to cancel all such Certificates and shall promptly deliver them to the Surviving Corporation at the Closing against delivery of the Uncertificated Shares to the Exchange Agent) for use in such exchange; provided, that any such letter of transmittal and instructions shall be sent to holders of Uncertificated Shares only to the extent determined necessary by Oracle and the Exchange Agent to effect the transactions contemplated herebyFunds.
(b) Each holder of shares of Siebel Stock TBC Shares that have been converted into the right to receive the Siebel Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Payment Agent of a CertificateCertificate or Certificates representing such shares, together with a properly completed letter of transmittaltransmittal or other appropriate document covering such shares, or (iiwill be entitled, subject to Section 2.5(g) receipt of an “agent’s message” by below, to receive the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Siebel Merger Consideration payable in respect of the Siebel Stock represented by a Certificate or Uncertificated Share. The shares of Parent Stock constituting part of such Siebel Merger Consideration (if any)TBC Shares, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Siebel Stock or is otherwise required under applicable lawwithout interest. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time represent for all purposes only the right to receive such Siebel Merger ConsiderationConsideration from the Payment Agent as provided herein.
(c) If any portion of the Siebel Merger Consideration is to be paid to a Person other than to the Person in whose name registered holder of the surrendered TBC Shares represented by the Certificate or the transferred Uncertificated Share is registeredCertificates surrendered in exchange therefor, it shall be a condition to such payment that (i) either such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent Surviving Corporation any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent Surviving Corporation that such taxes have tax has been paid or are is not payable.
(d) After the Effective Time, there shall be no further registration of or transfers of shares of Siebel StockTBC Common Stock on the stock transfer books of TBC. If, after the Effective Time, Certificates or Uncertificated Shares certificates representing shares of TBC Common Stock are presented to the Siebel Surviving Corporation, they shall be canceled cancelled and exchanged for the applicable Siebel Merger Consideration, without interest thereon, in accordance with the procedures set forth in this Section 3.10Article II.
(e) Any portion If, on or after the date of this Agreement and prior to the Effective Time, the outstanding shares of TBC Common Stock shall have been changed into a different number of shares or a different class by reason of any reclassification, recapitalization, split-up, combination, exchange or shares or readjustment, or a stock dividend or other extraordinary dividend or distribution thereon shall be declared with a record date within said period, the amount of the Siebel Merger Consideration made available by Parent to the Exchange Agent pursuant to Section 3.10(a) that remains unclaimed by the holders of shares of Siebel Stock six months after the Effective Time shall be returned to Parent upon demand, and any such holder who has not exchanged shares of Siebel Stock for the Siebel Merger Consideration in accordance with this Section 3.10 prior to that time shall thereafter look only to Parent for payment of the Siebel Merger Consideration, and any dividends and distributions with respect thereto, in respect of such shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of shares of Siebel Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Siebel Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity) shall become, to the extent permitted by applicable law, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretocorrespondingly adjusted.
(f) No dividends or other distributions with respect The right of any TBC Stockholder to Parent Stock constituting part receive the Merger Consideration or, in the case of the Siebel Merger ConsiderationPurchased Interests, and no cash payment in lieu of fractional shares as provided in Section 3.11other consideration, shall be paid subject to the holder of and reduced by any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 3.11 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securitiesrequired tax withholding obligation.
(g) Any portion IMR General, in its capacity as Payment Agent, shall have the authority, without limitation, to determine the amount of the Siebel Merger Consideration made available Sellers' Transactional Expenses, shall determine, review, negotiate and pay all of such expenses and other amounts determined, in its sole discretion, to be necessary or desirable to disburse in connection with the Transactions, to purchase equity (I.E., stock and option) interests on behalf of the TBC Stockholders, to pursue or compromise indemnification liability by or on behalf of one or more of the TBC Stockholders and to withhold reserves sufficient for, in its sole discretion, payment of all other Liabilities related to the Exchange Transactions, including, without limitation, the Purchase Price Adjustment requiring a payment to the Buyer. The Payment Agent shall for all purposes be deemed the sole authorized agent of each TBC Stockholder with respect to calculation and distributions of pro-rata amounts delivered to it by the Buyer under this Article II, and each such TBC Stockholder, in approving this Agreement, consents and approves such agency and all actions taken by the Payment Agent pursuant to Section 3.10(ait. Any action or failure to act so taken (or not taken) or Section 3.11 to pay for shares by the Payment Agent shall constitute a decision of Siebel Stock for which appraisal rights have been perfected each TBC Stockholder, and shall be returned to Parentfinal, binding and conclusive upon demand.
(h) Certificates representing shares of Oracle Stock immediately prior to each TBC Stockholder. The Buyer, the Initial Effective Time shallTransitory Subsidiary and, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the Oracle Merger Consideration. At the Effective Time, the Exchange Surviving Corporation may rely upon any decision, act, consent or instruction of the Payment Agent shall exchange as being the decision, act, consent or instruction of each and all of the TBC Stockholders. The Buyer, the Transitory Subsidiary and, after the Effective Time, the Surviving Corporation are relieved from any Liability to any Person for any acts done by book entry transfer all uncertificated shares of Oracle Stock (excluding any shares of Oracle Stock to be canceled pursuant to Section 3.01(a)) for the shares of Parent Stock constituting the Oracle Merger Consideration. No separate certificates shall be issued in exchange for Oracle Stock them in accordance with Section 251(g) any such decision, act, consent or instruction. IMR agrees to indemnify and hold harmless the Buyer, its Affiliates and, after the Effective Time, the Surviving Corporation from and against any Liabilities any of DGCLthem may incur as a result of or connected with the actions or failures to act by the Payment Agent or its Representatives or agents.
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Sources: Merger Agreement (Bekins Co /New/)