Surrender and Payment. (a) On or prior to the Acceptance Time, Parent shall appoint a bank or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent in the Merger (the “Exchange Agent”) for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective Time or as promptly as practicable thereafter (but in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Time), Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit with the Exchange Agent at the Effective Time (or as promptly as practicable thereafter) a portion of such aggregate Merger Consideration and/or consideration to be paid for Shares accepted for purchase in the Offer, from the Company’s Cash on Hand as specified in such request. The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments for the shares tendered in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included in the Exchange Fund, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or as otherwise directed by Parent. Any interest and other income resulting from such investments shall be kept in the Exchange Fund. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. Any interest or other income resulting from the investment of such funds shall be the property of Parent. (b) Promptly after the Effective Time (and in any event within three (3) Business Days), Parent shall send, or shall cause the Exchange Agent to send, to each holder of 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. Each holder of Shares that have been converted into the right to receive the 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, or, in each case, such other documents as may be reasonably required by the Exchange Agent or Parent, the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Share. 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. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Uncertificated Share. (c) If any portion of the 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, in the case of Uncertificated Shares, that such documentation as may be reasonably requested by the Exchange Agent is provided 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 Tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registered. (d) At the Effective Time, (i) all Shares issued and outstanding immediately prior to the Effective Time shall be automatically canceled and retired and shall cease to exist, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, cease to have any rights as stockholders of the Company and (ii) the stock transfer books of the Company shall be closed with respect to all Shares outstanding immediately prior to the Effective Time. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth in, this Article 3. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
Appears in 2 contracts
Sources: Merger Agreement (Sizmek Inc.), Merger Agreement (Sizmek Inc.)
Surrender and Payment. (a) On At or prior to the Acceptance Effective Time, Parent shall appoint a bank or trust company or similar entity reasonably acceptable make available to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent in the Merger (the “Exchange Agent”) for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging for the Merger Consideration Agent (i) evidence of the Parent Class A Common Stock in book-entry form (and/or certificates representing Shares (the “Certificates”shares of Parent Class A Common Stock at Parent’s election) or sufficient to deliver the aggregate Stock Consideration, (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective Time immediately available funds equal to any dividends or as promptly as practicable thereafter (but distributions payable in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Timeaccordance with Section 2.04(c), Parent shall provide the Exchange Agent (iii) immediately available funds representing equal to the aggregate Merger Consideration Cash Consideration, and (iv) cash in lieu of any fractional shares to be paid in respect of the Certificates and the Uncertificated Shares issued pursuant to Section 3.02(a2.02 and paid pursuant to Section 2.04(f) in exchange for outstanding shares of Company Stock (other than Dissenting Shares) (such cash and book-entry or certificates for shares of Parent Class A Common Stock collectively being referred to as the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit with . Such cash funds may be invested by the Exchange Agent at as directed by Parent; provided that (A) no such investment or losses thereon shall affect the Effective Time (or as promptly as practicable thereafter) a portion of such aggregate Merger Consideration and/or consideration or other amounts payable hereunder, (B) if, for any reason (including if Dissenting Shares cease to be paid Dissenting Shares or if a dividend or distribution payable in accordance with Section 2.04(c) is paid), the cash and the evidence of book-entry or certificates for Shares accepted for purchase shares of Parent Class A Common Stock in the Offer, from the Company’s Cash on Hand as specified in such request. The Exchange Agent shall cause the Exchange Fund becomes insufficient to be (i) held make the payments contemplated by this Article 2, then Parent shall promptly provide additional cash, evidence of book-entry or certificates for shares of Parent Class A Common Stock, as applicable to the Exchange Agent for the benefit of the holders former stockholders of Shares the Company sufficient to make the payments contemplated by this Article 2 and (iiC) promptly applied to making the payments for the shares tendered such investments shall only be in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included in the Exchange Fund, in direct short-term obligations of the United States of America, obligations for which 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 is pledged to provide for the payment of all principal and interestor in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or as otherwise directed by Parent. Any interest and other income resulting from such investments shall be kept in the Exchange Fund. To the extent that there are losses with respect to such investmentsStandard & Poor’s Corporation, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsrespectively. Any interest or other income resulting from produced by such investments will be payable to the investment of such funds shall be the property of Surviving Corporation or Parent, as Parent directs.
(b) Promptly after the Effective Time (and in any event within but not later than three (3) Business DaysDays thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares at the Effective Time shares of Company Stock who did not properly complete and timely submit and not revoke a Form of Election 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. Each holder Upon proper surrender of the Certificates for exchange (or affidavits of loss in lieu thereof) and cancellation or transfer of the Uncertificated Shares that have been converted into the right to receive the 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, as applicable, (iii) receipt of an “agent’s message” by the Exchange Agent (a certificate or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer representing the number of whole shares of Parent Class A Common Stock to which such holder of Company Stock shall have become entitled pursuant to the provisions of Article 2, (ii) a check representing the amount of the aggregate Cash Consideration (rounded up to the nearest whole cent) and any cash in lieu of fractional shares which such holder has the right to receive in respect of the Certificates or Uncertificated Shares surrendered pursuant to the provisions of this Article 2, and (iii) a check representing the amount of any dividends or distributions then payable pursuant to Section 2.04(c), and the Certificates or Uncertificated Shares so surrendered shall forthwith be canceled. No interest will be paid or accrued on any cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates or Uncertificated Shares, or, in each case, such other documents as may be reasonably required by the Exchange Agent or Parent, the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Share. 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 the Merger Consideration, together with any cash in lieu of fractional shares and any dividends or distributions as contemplated by Section 2.04(c). 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 Company Stock.
(c) No interest dividends or other distributions declared with respect to Parent Class A Common Stock shall be paid to the holder of any Certificate that has not been surrendered or accrued on Uncertificated Share that has not been transferred until the cash payable upon holder thereof shall surrender such Certificate or transfer such Uncertificated Share in accordance with this Article 2. After the surrender of a Certificate or transfer of an Uncertificated Share in accordance with this Article 2, the record holder thereof shall be entitled to receive (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore paid, without any interest thereon, with respect to the whole shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender, with respect to shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share.
(cd) If any portion certificate representing shares of the Merger Parent Class A Common Stock is to be issued in, or any Cash 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 oror such Uncertificated Share shall be properly transferred, in the case of Uncertificated Sharesaccompanied by all documents reasonably required to evidence and effect such transfer, that such documentation as may be reasonably requested by the Exchange Agent is provided 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 Tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registered.
(de) At The shares of Parent Class A Common Stock delivered and cash 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, (i) all Shares issued and outstanding immediately prior subject to Delaware Law in the Effective Time shall be automatically canceled and retired and shall cease to existcase of Dissenting Shares, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, 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 and (iiany funds payable in accordance with Section 2.04(c) upon the stock transfer books surrender of the Company shall be closed such Certificate or Uncertificated Share in accordance with respect to all Shares outstanding immediately prior to the Effective Timethis Article 2. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCorporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth inforth, in this Article 32 plus any funds payable in accordance with Section 2.04(c).
(ef) Notwithstanding anything to the contrary contained in this Agreement, no certificates or scrip representing fractional shares of Parent Class A Common Stock shall be issued upon the surrender of Certificates for exchange or transfer of Uncertificated Shares, no dividend or distribution with respect to Parent Class A Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any such fractional share, Parent shall pay to each former stockholder of the Company who otherwise would be entitled to receive such fractional share an amount in cash, without interest (rounded to the nearest cent) determined by multiplying (i) the Parent Trading Price by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Parent Class A Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 2.02.
(g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) Fund that remains unclaimed by the former holders of Shares twelve (12) months after shares of Company Stock 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 such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.03 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 Merger Consideration Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions payable in accordance with Section 2.04(c), in respect of each share of Company Stock, as the case may be, 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 shares of Company Stock for any amount paid delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws. Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration or the cash to be paid in accordance with this Article 2 that remains undistributed to any former holder of Company Stock, as of immediately prior to the date on which the Merger Consideration or such cash that would otherwise escheat to or become the property of any Governmental Authority, 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.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) On or prior Prior to the Acceptance Effective Time, Parent Merger Sub shall appoint as agent (the "Exchange Agent") a commercial bank or trust company or similar entity company, reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent having at least $50,000,000 in the Merger (the “Exchange Agent”) capital, surplus and undivided profits, for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging certificates representing Shares for the Merger Consideration (i) which holders of such certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At are entitled to receive pursuant to this Article I. Immediately prior to the Effective Time or as promptly as practicable thereafter (but Time, Merger Sub shall deposit in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Time), Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit trust with the Exchange Agent at cash in an aggregate amount equal to the product of (i) the number of Shares outstanding immediately prior to the Effective Time (other than the Shares owned by Merger Sub or the Company and any direct or indirect subsidiary of Merger Sub or the Company, and Shares as promptly to which dissenters' rights have been exercised as practicable thereafterof the Effective Time) a portion of such aggregate and (ii) the Merger Consideration and/or consideration (such amount being hereinafter referred to be paid for Shares accepted for purchase in as the Offer, from the Company’s Cash on Hand as specified in such request"Payment Fund"). The Payment Fund shall be invested by the Exchange Agent shall cause as directed by Merger Sub (so long as such directions do not impair the Exchange Fund to be (i) held for the benefit rights of the holders of Shares and (iiShares) promptly applied to making the payments for the shares tendered in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included in the Exchange Fund, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or as otherwise directed by Parent. Any interest and other income resulting from such investments any net earnings with respect thereto shall be kept paid to Merger Sub as and when requested by Merger Sub. The Exchange Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 1.3(b) out of the Exchange Payment Fund. To the extent that there are losses with respect to such investments, or the Exchange The Payment Fund diminishes shall not be used for any other reasons below the level required to make prompt payments of the Merger Consideration purpose except as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsprovided herein. Any interest or other income resulting from the investment of such funds shall be the property of Parent.
(b) Promptly after the Effective Time (and in any event within three (3) Business Days)Time, Parent shall Merger Sub will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Shares, other than holders of certificates which represent Shares canceled and retired pursuant to Section 1.2(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 shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent) and (ii) instructions for use in such exchange. effecting the surrender of certificates for payment therefor (the "Exchange Instructions").
(b) Each holder of certificates representing Shares that have been converted into the a right to receive the Merger Consideration shall be which holders of such certificates are entitled to receivereceive pursuant to this Article I, upon (i) surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed and executed 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, or, in each case, such Shares and any other documents as may be reasonably required by the Exchange Agent or ParentInstructions, will promptly receive the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Sharein respect of such Shares as provided in this Article I, without any interest thereon, less any required withholding of taxes, and the certificates so surrendered shall forthwith be canceled. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent certificate shall, and after the Effective Time Time,represent for all purposes only the right to receive the such Merger Consideration. No interest shall be paid Consideration except as otherwise provided herein or accrued on the cash payable upon the surrender or transfer of any Certificate or Uncertificated Shareby 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 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 Merger Consideration is to be paid to a Person other than the Person registered holder of the 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, in the case of Uncertificated Shares, and that such documentation as may be reasonably requested by the Exchange Agent is provided 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 Shares or establish to the satisfaction of the Exchange Agent that such Tax tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registered.
(d) At the Effective Time, (i) all Shares issued and outstanding immediately prior to the Effective Time shall be automatically canceled and retired and shall cease to exist, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, cease to have The Exchange Agent may make any rights as stockholders of the Company and (ii) the stock transfer books of the Company shall be closed with respect to all Shares outstanding immediately prior to the Effective Time. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration tax withholdings required by law if not provided for, and in accordance with the procedures set forth inappropriate documents. For purposes of this Agreement, this Article 3"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 Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
Appears in 1 contract
Surrender and Payment. (a) On or prior Prior to the Acceptance Effective Time, Parent shall appoint a bank or trust company or similar entity an agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent in the Merger (the “Exchange Agent”) for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At Parent shall, at or prior to the Effective Time Time, deposit or as promptly as practicable thereafter (but in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Time), Parent shall provide cause to be deposited with the Exchange Agent funds representing cash sufficient to make all payments of the aggregate Merger Consideration to be paid payable in respect of the Certificates and the Uncertificated Shares pursuant to in accordance with Section 3.02(a) (the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit 2.02. The cash amount deposited with the Exchange Agent at the Effective Time (or as promptly as practicable thereafterin accordance with this Section 2.03(a) a portion of such aggregate Merger Consideration and/or consideration to be paid for Shares accepted for purchase in the Offer, from the Company’s Cash on Hand as specified in such request. The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments for the shares tendered in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for hereinother than as set forth in this Article 2. The Exchange Agent shall invest any the cash included in amount deposited with the Exchange Fund, Agent in accordance with this Section 2.03(a) as directed by ▇▇▇▇▇▇ solely in (A) direct short-term obligations of the United States of America, (B) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, (C) commercial paper rated P-1 or as otherwise directed A-1 or better by Parent. Any interest and other income resulting from such investments shall be kept ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (D) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000, (E) money market funds having a rating in the highest investment category granted by a nationally recognized credit rating agency at the time of acquisition or (F) a combination of any of the foregoing, provided that, in any such case, no such instrument shall have a maturity exceeding three months. No investment or losses of any of the cash amounts deposited with the Exchange Fund. To Agent in accordance with this Section 2.03(a) shall relieve Parent, the Surviving Corporation or the Exchange Agent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable to holders of Shares, and to the extent that there are any losses with respect to any such investments, or the cash amount deposited with the Exchange Fund Agent diminishes for other reasons any reason below the level required for the Exchange Agent to make prompt payments of the Merger Consideration as contemplated herebycash payment in accordance with Section 2.02, Parent shall promptly replace or restore the portion of provide additional cash to the Exchange Fund lost through investments or other events Agent so as to ensure that the Exchange Fund is, Agent has at all times, maintained and after the Effective Time cash at a level sufficient for the Exchange Agent to make such paymentsall payments in accordance with Section 2.02 that remain unpaid. Any interest or other income resulting from Parent shall pay all charges and expenses of the investment Exchange Agent in connection with the exchange of such funds shall be Shares for the property of Parent.
(b) Merger Consideration. Promptly after the Effective Time (and in any event within three (3) event, not later than the fifth Business DaysDay following the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares at as of immediately prior to 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 Agent) for use in such exchange. .
(b) Each holder of Shares that have been converted into the right to receive the 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, orthe Merger Consideration payable for each such Share represented by such Certificate or for each such Uncertificated Share, in each caseand upon the occurrence of (i) or (ii) (as applicable), such other documents as may be reasonably required by Parent shall direct the Exchange Agent to issue and deliver to the relevant holder, by check or Parentwire transfer (as specified in the letter of transmittal), a cash amount equal the Merger Consideration payable for each Share represented held by a Certificate or for each Uncertificated Sharesuch holder. 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. No interest shall be paid or accrued shall accrue on the cash payable upon the surrender or transfer of any Certificate or Uncertificated Sharesuch ▇▇▇▇▇▇.
(c) If any portion of the 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, in the case of or such Uncertificated Shares, that such documentation as may Share shall be reasonably requested by the Exchange Agent is provided 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 reasonable satisfaction of the Exchange Agent and Parent that such Tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registered.
(d) At the Effective Time, (i) all Shares issued and outstanding immediately prior to the Effective Time shall be automatically canceled and retired and shall cease to exist, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, cease to have any rights as stockholders of the Company and (ii) the stock transfer books of the Company shall be closed with respect to all Shares outstanding immediately prior to the Effective Time. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth inforth, in this Article 32.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.03(a) 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve (12) that have been converted into the right to receive the Merger Consideration 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such 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 for any amount paid to a public official any Governmental Authority pursuant to applicable abandoned property, escheat or similar lawsApplicable Law. Any amounts remaining unclaimed by holders of Shares that have been converted into the right to receive the Merger Consideration 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 Authority) 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) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
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Sources: Merger Agreement (Campbell Soup Co)
Surrender and Payment. (a) On or prior Prior to the Acceptance Effective Time, Parent Merger Sub shall appoint as agent (the "Exchange Agent") a commercial bank or trust company or similar entity company, reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent having at least $50,000,000 in the Merger (the “Exchange Agent”) capital, surplus and undivided profits, for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging certificates representing Shares for the Merger Consideration (i) which holders of such certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At are entitled to receive pursuant to this Article I. Immediately prior to the Effective Time or as promptly as practicable thereafter (but Time, Merger Sub shall deposit in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Time), Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit trust with the Exchange Agent at cash in an aggregate amount equal to the product of (i) the number of Shares outstanding immediately prior to the Effective Time (other than the Shares owned by Merger Sub or the Company and any direct or indirect subsidiary of Merger Sub or the Company, and Shares as promptly to which dissenters' rights have been exercised as practicable thereafterof the Effective Time) a portion of such aggregate and (ii) the Merger Consideration and/or consideration (such amount being hereinafter referred to be paid for Shares accepted for purchase in as the Offer, from the Company’s Cash on Hand as specified in such request"Payment Fund"). The Payment Fund shall be invested by the Exchange Agent shall cause as directed by Merger Sub (so long as such directions do not impair the Exchange Fund to be (i) held for the benefit rights of the holders of Shares and (iiShares) promptly applied to making the payments for the shares tendered in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included in the Exchange Fund, in direct obligations of the United States of America, obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, or as otherwise directed by Parent. Any interest and other income resulting from such investments any net earnings with respect thereto shall be kept paid to Merger Sub as and when requested by Merger Sub. The Exchange Agent shall, pursuant to irrevocable instructions, make the payments referred to in Section 1.3(b) out of the Exchange Payment Fund. To the extent that there are losses with respect to such investments, or the Exchange The Payment Fund diminishes shall not be used for any other reasons below the level required to make prompt payments of the Merger Consideration purpose except as contemplated hereby, Parent shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsprovided herein. Any interest or other income resulting from the investment of such funds shall be the property of Parent.
(b) Promptly after the Effective Time (and in any event within three (3) Business Days)Time, Parent shall Merger Sub will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Shares, other than holders of certificates which represent Shares canceled and retired pursuant to Section 1.2(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 shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent) and (ii) instructions for use in such exchange. effecting the surrender of certificates for payment therefor (the "Exchange Instructions").
(b) Each holder of certificates representing Shares that have been converted into the a right to receive the Merger Consideration shall be which holders of such certificates are entitled to receivereceive pursuant to this Article I, upon (i) surrender to the Exchange Agent of a Certificatecertificate or certificates representing such Shares, together with a properly completed and executed 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, or, in each case, such Shares and any other documents as may be reasonably required by the Exchange Agent or ParentInstructions, will promptly receive the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Sharein respect of such Shares as provided in this Article I, without any interest thereon, less any required withholding of taxes, and the certificates so surrendered shall forthwith be canceled. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent certificate shall, and after the Effective Time Time,represent for all purposes only the right to receive the Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Uncertificated Share.
(c) If any portion of the such Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate except as otherwise provided herein 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, in the case of Uncertificated Shares, that such documentation as may be reasonably requested by the Exchange Agent is provided 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 Tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registeredlaw.
(d) At the Effective Time, (i) all Shares issued and outstanding immediately prior to the Effective Time shall be automatically canceled and retired and shall cease to exist, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, cease to have any rights as stockholders of the Company and (ii) the stock transfer books of the Company shall be closed with respect to all Shares outstanding immediately prior to the Effective Time. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth in, this Article 3.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
Appears in 1 contract
Surrender and Payment. (a) On or prior Prior to the Acceptance Effective Time, Parent shall appoint a bank or trust company or similar entity an agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as paying agent with respect to the Offer and exchange agent in the Merger (the “Exchange Agent”) for the purpose of paying for the shares tendered in the Offer at the Offer Price or exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At Parent shall, at or prior to the Effective Time Time, deposit or as promptly as practicable thereafter (but in no event later than 9:00 a.m., New York City time, on the Business Day following the Acceptance Time), Parent shall provide cause to be deposited with the Exchange Agent funds representing cash sufficient to make all payments of the aggregate Merger Consideration to be paid payable in respect of the Certificates and the Uncertificated Shares pursuant to in accordance with Section 3.02(a) (the “Exchange Fund”); provided, that the Company shall, at the request of Parent, deposit 2.02. The cash amount deposited with the Exchange Agent at the Effective Time (or as promptly as practicable thereafterin accordance with this Section 2.03(a) a portion of such aggregate Merger Consideration and/or consideration to be paid for Shares accepted for purchase in the Offer, from the Company’s Cash on Hand as specified in such request. The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments for the shares tendered in the Offer provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose that is not provided for hereinother than as set forth in this Article 2. The Exchange Agent shall invest any the cash included in amount deposited with the Exchange Fund, Agent in accordance with this Section 2.03(a) as directed by Parent solely in (A) direct short-term obligations of the United States of America, (B) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of all principal and interest, (C) commercial paper rated P-1 or as otherwise directed A-1 or better by Parent. Any interest and other income resulting from such investments shall be kept M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (D) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000, (E) money market funds having a rating in the highest investment category granted by a nationally recognized credit rating agency at the time of acquisition or (F) a combination of any of the foregoing, provided that, in any such case, no such instrument shall have a maturity exceeding three months. No investment or losses of any of the cash amounts deposited with the Exchange Fund. To Agent in accordance with this Section 2.03(a) shall relieve Parent, the Surviving Corporation or the Exchange Agent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable to holders of Shares, and to the extent that there are any losses with respect to any such investments, or the cash amount deposited with the Exchange Fund Agent diminishes for other reasons any reason below the level required for the Exchange Agent to make prompt payments of the Merger Consideration as contemplated herebycash payment in accordance with Section 2.02, Parent shall promptly replace or restore the portion of provide additional cash to the Exchange Fund lost through investments or other events Agent so as to ensure that the Exchange Fund is, Agent has at all times, maintained and after the Effective Time cash at a level sufficient for the Exchange Agent to make such paymentsall payments in accordance with Section 2.02 that remain unpaid. Any interest or other income resulting from Parent shall pay all charges and expenses of the investment Exchange Agent in connection with the exchange of such funds shall be Shares for the property of Parent.
(b) Merger Consideration. Promptly after the Effective Time (and in any event within three (3) event, not later than the fifth Business DaysDay following the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares at as of immediately prior to 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 Agent) for use in such exchange. .
(b) Each holder of Shares that have been converted into the right to receive the 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, orthe Merger Consideration payable for each such Share represented by such Certificate or for each such Uncertificated Share, in each caseand upon the occurrence of (i) or (ii) (as applicable), such other documents as may be reasonably required by Parent shall direct the Exchange Agent to issue and deliver to the relevant holder, by check or Parentwire transfer (as specified in the letter of transmittal), a cash amount equal the Merger Consideration payable for each Share represented held by a Certificate or for each Uncertificated Sharesuch holder. 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. No interest shall be paid or accrued shall accrue on the cash payable upon the surrender or transfer of any Certificate or Uncertificated Sharesuch S▇▇▇▇▇.
(c) If any portion of the 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, in the case of or such Uncertificated Shares, that such documentation as may Share shall be reasonably requested by the Exchange Agent is provided 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 reasonable satisfaction of the Exchange Agent and Parent that such Tax has been paid or is not payable. Payment of the applicable Merger Consideration with respect to Uncertificated Shares shall only be made to the Person in whose name such Uncertificated Shares are registered.
(d) At the Effective Time, (i) all Shares issued and outstanding immediately prior to the Effective Time shall be automatically canceled and retired and shall cease to exist, and all holders of Certificates representing Shares, and all holders of Uncertificated Shares representing Shares, that were outstanding immediately prior to the Effective Time shall, in each case, cease to have any rights as stockholders of the Company and (ii) the stock transfer books of the Company shall be closed with respect to all Shares outstanding immediately prior to the Effective Time. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth inforth, in this Article 32.
(e) Any portion of the Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.03(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve (12) that have been converted into the right to receive the Merger Consideration 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such 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 for any amount paid to a public official any Governmental Authority pursuant to applicable abandoned property, escheat or similar lawsApplicable Law. Any amounts remaining unclaimed by holders of Shares that have been converted into the right to receive the Merger Consideration 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 Authority) 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) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
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