Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective 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”). 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 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. (a) Promptly after the Effective Time, 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, 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. (b) 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. (c) 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. (d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent Alcatel shall appoint a bank The Bank of New York or trust company or similar entity an agent mutually agreed by Alcatel and Lucent (the "EXCHANGE AGENT"), pursuant to an agreement in form and substance reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) Alcatel and Lucent for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”"CERTIFICATES") or (ii) uncertificated Shares (for the “Uncertificated Shares”Merger Consideration and any dividends payable pursuant to Section 1.03(f). At the Effective Time, Parent shall provide Alcatel shall: (i) deposit, or cause to be deposited, with Societe Generale, as custodian and agent of The Bank of New 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) deposit, or cause to be deposited, with the Exchange Agent funds the receipts representing the such aggregate Merger Consideration to be paid number of ADSs, in respect each of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be cases (i) held and (ii), for the benefit of the holders of Shares and (iiwhich are converted into the right to receive ADSs pursuant to Section 1.02(a)(iii) promptly applied to making the payments 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 Fundthis Agreement. To the extent that there are losses with respect to such investmentsrequired, or Alcatel shall cause the Exchange Fund diminishes for other reasons below Agent to requisition from the level required Depository, from time to make prompt payments time, such number of the Merger Consideration ADSs as contemplated hereby, Parent shall promptly replace or restore the portion are issuable in respect of Shares to be properly delivered to 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.
(a) Agent. Promptly after the Effective Time, Parent shall Alcatel will send, or shall will cause the Exchange Agent to send, to each holder of Shares 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. Following the Effective Time, Alcatel agrees to 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 1.03(f). At and after the Effective Time, Alcatel will take all actions necessary to cause the 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 in Section 1.04, any Lucent Warrant, any Lucent Stock-Based Account or Lucent Convertible Debt.
(b) for use in such exchange. Each holder of Shares that have been converted into the a right to receive the 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 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, will be entitled to receive the Merger Consideration in respect of such Shares (including cash payable for each Share represented by in lieu of fractional shares pursuant to Section 1.06), and any dividends payable pursuant to Section 1.03(f). Until a Certificate or for each Uncertificated Share. Until is so surrendered or transferredsurrendered, 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 the such Merger ConsiderationConsideration and any dividends payable pursuant to Section 1.03(f) (in each case without interest thereon).
(bc) 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 the Certificate 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 or establish to the satisfaction of the Exchange Agent that such Tax tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to Alcatel or the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided forConsideration, and any dividends payable pursuant to Section 1.03(f), in accordance with the procedures set forth, in provisions of this Article 3I. In no event shall any interest be payable with respect to the Merger Consideration or any such dividends.
(de) Any portion of the Merger Consideration Consideration, or dividends payable pursuant to Section 1.03(f), made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon1.03(a) that remains unclaimed by the holders of Shares one year twelve (12) months after the Effective Time shall be returned to ParentAlcatel, upon demand, and any such holder who has not exchanged such his Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent Alcatel for payment of the Merger 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 for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares three years after the Effective Time (or such earlier date immediately prior to the such time when as such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental entity) shall, to the extent permitted by Applicable Lawapplicable 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.
(ef) Any portion No dividends or other distributions with respect to ADSs (or the underlying Alcatel Ordinary Shares) issued in the Merger shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered as provided in this Section 1.03. Subject to applicable law, following such surrender, there shall be paid, without interest, to the record holder of the Merger Consideration made available ADSs issued in exchange for such Certificates or Book-Entry Shares (i) at the time of such surrender, all dividends and other distributions payable in respect of such ADSs with a record date after the Effective Time and a payment date on or prior to the Exchange Agent date of such surrender and which were not previously paid, and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such ADSs with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of ADSs, all ADSs to be issued pursuant to the Merger (excluding ADSs (and underlying Alcatel Ordinary Shares) issuable upon exercise of options which are issued pursuant to Section 3.03(a1.04 unless such options are actually exercised prior to the Effective Time, or upon exercise of Lucent Warrants, Lucent Stock-Based Awards or Lucent Convertible Debt) shall be entitled to pay for Shares for which rights dividends pursuant to receive payment the immediately preceding sentence as if such ADSs were issued and outstanding as of the fair value of such Shares have been perfected shall be returned to Parent, upon demandEffective Time.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent exchange agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective TimeTime and concurrently with the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, 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(a2.02(a) (the “Exchange Fund”). 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 provided for in Section 3.02(a2.02(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.
(ab) Promptly after the Effective Time, 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, Shares or 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.
(bc) 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.
(cd) 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 (other than the right to receive the Merger Consideration in accordance with this Agreement) 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 forthforth in, in this Article 32.
(de) Any portion of the Merger Consideration made available to 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 one year 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 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 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Common Stock (the “Certificates”) or (ii) uncertificated Shares (for the “Uncertificated Shares”)applicable Merger Consideration, and Parent and Exchange Agent shall enter into an exchange agreement which shall, in form and substance, be reasonably acceptable to the Company. At Prior to the Effective Time, Parent shall provide deposit or cause to be deposited with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate fund established for the benefit of the holders of Shares and (ii) promptly applied shares of Common Stock, cash sufficient to making pay the payments provided aggregate Merger Consideration required to be paid for in Section 3.02(a)all of the Certificates at the Effective Time. The Any cash deposited with the Exchange Fund Agent shall not be used for any purpose that is not provided for other than as set forth in this ARTICLE II (until released as described herein. The ) and shall be invested by the Exchange Agent shall invest any cash included in as directed by Parent or the Exchange Fund, in Surviving Corporation in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of AmericaAmerica with a remaining term at the time of acquisition thereof not in excess of 90 days, obligations for which (B) money market accounts or certificates of deposit maturing within 90 days of the full faith acquisition thereof and credit issued by a bank or trust company organized under the laws of the United States of America is pledged or a State thereof having a combined capital surplus in excess of $500,000,000 (a “United States Bank”), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by ▇▇▇▇▇’▇ Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. The earnings and interest thereon shall be paid to provide for the payment of all principal and interest, Parent or as otherwise directed by ParentParent directs. 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares record of shares of Common Stock at the Effective Time Time, a letter of transmittal and instructions for use in effecting the surrender of a Certificate in exchange for payment of the applicable Merger Consideration (which shall (i) be in a form reasonably acceptable to each of Parent and the Company and (ii) 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 shares of Common Stock that have been converted into the right to receive the applicable Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed and validly executed letter of transmittaltransmittal in accordance with the instructions thereto, or (ii) and such other documents as may be required pursuant to such instructions, the applicable Merger Consideration in respect of the Common Stock represented by a Certificate. Such payment of the applicable Merger Consideration shall be sent to such holder of shares of Common Stock promptly after receipt of an “agent’s message” such Certificate and letter of transmittal 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 Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated ShareAgent. 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 applicable Merger Consideration. No interest shall be paid or accrued for the benefit of holders of the Certificates on the Merger ConsiderationConsideration payable upon surrender of the Certificates.
(bc) If any portion of the applicable 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 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 Surviving Corporation and the Exchange Agent that such Tax tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the applicable Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3ARTICLE II. From and after the Effective Time, the holders of Certificates evidencing ownership of the Common Stock shall cease to have any rights with respect to such Common Stock except as otherwise provided herein.
(de) Any portion of the aggregate Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.03(a2.04(a) (and any earnings and interest or other income earned thereon) thereon that remains unclaimed by the holders of Shares one year shares of Common Stock six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Common Stock for the applicable Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent for payment of the applicable Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Common Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable applicable Law, the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Liberty Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent Purchaser shall appoint designate 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 Exchange Agent in the Merger paying agent (the “Exchange "Paying Agent”") for the purpose payment of exchanging for the Merger Consideration in respect of Certificates (ias defined below) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At that, immediately prior to the Effective Time, Parent represent Common Shares entitled to payment of the Merger Consideration pursuant to Section 1.2. Immediately prior to the Effective Time, Purchaser shall provide deposit, or cause to be deposited, in trust with the Exchange Paying Agent funds representing in cash the aggregate Merger Consideration into which Common Shares shall have been converted pursuant to Section 1.2, such amount being hereinafter referred to as the "Payment Fund."
(b) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates that, immediately prior to the Effective Time, represent Common Shares (the "Certificates") a form of letter of transmittal which shall specify that delivery shall be paid in respect effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and instructions for use in surrendering such Certificates and receiving the Uncertificated Merger Consideration in respect thereof. Upon the surrender of each such Certificate, together with a duly executed letter of transmittal and any other required documents, the Paying Agent shall, as soon as practicable, pay the holder of such Certificate an amount equal to the product of (x) the Merger Consideration multiplied by (y) the number of Common Shares pursuant formerly represented by such Certificate, less any required withholding taxes, in consideration therefor, and such Certificate shall be cancelled. Until so surrendered, each such Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) shall represent solely the right to Section 3.02(a) (receive the “Exchange Fund”)aggregate Merger Consideration relating thereto. The Exchange Paying Agent shall cause invest the Exchange Payment Fund to be as directed by Purchaser (i) held for so long as such directions do not impair the benefit rights of the holders of Shares and (iiCommon Shares) promptly applied to making the payments 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, or money market funds substantially all the assets of which are invested in direct obligations of, the United States of America, or by any agency the obligations for of which are backed by 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 paid to Purchaser, and no interest or other income shall be paid or accrued on the Exchange FundMerger Consideration to the holders of Common Shares. To Subject to Section 1.3(c), the extent that there are losses with respect Paying Agent shall, pursuant to such investmentsirrevocable instructions, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of pay the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion set forth in this Section 1.3 out of the Exchange Payment Fund. The Payment Fund lost through investments or shall not be used for any purpose other events so than as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(a) Promptly after the Effective Time, 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 exchangeprovided herein. Each holder of Shares that have been converted into the right to receive If 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, 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.
(b) If any portion of the Merger Consideration thereof) is to be paid delivered to any individual, corporation, trust, association, unincorporated association, estate, partnership, joint venture, limited liability company, Governmental Authority or other legal entity (each, a Person "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 payment right to receive such Merger Consideration that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or, in the case of Uncertificated Sharestransfer, that such documentation as may the signatures on the Certificate shall be reasonably requested by the Exchange Agent is provided properly guaranteed, and (ii) that the Person requesting surrendering such payment Common Shares shall pay to the Exchange Paying Agent any transfer or 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 surrendered, or Uncertificated Share or shall establish to the satisfaction of the Exchange Paying Agent that such Tax has taxes have been paid or are not applicable. In the event any Certificate shall have been lost, stolen or destroyed, the Paying Agent shall be required to pay the full Merger Consideration in respect of any Common Shares represented by such Certificate; provided, however, that Purchaser may require the owner of such lost, stolen or destroyed Certificate to execute and deliver to the Paying Agent a form of affidavit claiming such Certificate to be lost, stolen or destroyed in form and substance reasonably satisfactory to Purchaser, and the posting by such owner of a bond in such amount as Purchaser may determine is not payablereasonably necessary as indemnity against any claim that may be made against Purchaser or the Paying Agent.
(c) After At any time following the date which is 135 days after the Effective Time, Surviving Corporation may require that the Paying Agent shall deliver to Surviving Corporation all cash, Certificates and other documents in its possession relating to the transactions contemplated by this Agreement. Thereafter, each holder of a Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor the aggregate Merger Consideration relating thereto, without any interest or other income thereon. Notwithstanding the foregoing, none of Purchaser, Merger Sub, the Surviving Corporation, the Company or the Paying Agent shall be liable to any Person in respect of any cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any such Certificates shall not have been surrendered immediately prior to such date on which any payment pursuant to this Section 1.3 would otherwise escheat to or become the property of any Governmental Authority, the cash payment in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interests of any Person previously entitled thereto.
(d) Immediately prior to the Effective Time, the stock transfer books of the Company shall be closed, and, after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Surviving Corporation of Sharesany Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCorporation or the Paying Agent, they shall be canceled surrendered and exchanged cancelled in return for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(d) 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 one year 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 aggregate Merger Consideration relating thereto, as provided 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretothis Section 1.3.
(e) Any portion From and after the Effective Time, all holders of Certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time (other than the Certificates representing Purchaser Shares) shall cease to have any rights with respect to such Common Shares except (i) holders of Common Shares that are not Dissenting Shares may surrender such Certificates in exchange for the Merger Consideration made available pursuant to the Exchange Agent this Agreement, (ii) holders of Dissenting Shares may perfect any rights of appraisal as a holder of Dissenting Shares that such holders may have pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment 262 of the fair value DGCL and (iii) holders of Dissenting Shares who fail to perfect or withdraw or otherwise lose the right to appraisal may surrender such Shares have been perfected shall be returned Certificates in exchange for the Merger Consideration pursuant to Parent, upon demandthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lazard Freres Real Estate Investors LLC)
Surrender and Payment. (a) Prior to After promptly as practicable (and in any event within five (5) Business Days) after the Effective Timedate of this Agreement, Parent and Purchaser shall (i) appoint a bank or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers Depositary to act as Exchange Agent agent for purposes of receiving Shares that are validly tendered in the Merger Offer and paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Exchange Paying Agent”) for the purpose of exchanging for the Merger Consideration (ithe Shares pursuant to Section 3.03(a) certificates representing Shares (the “Certificates”) or and (ii) uncertificated Shares (deposit or cause to be deposited with the “Uncertificated Shares”). At Depositary cash sufficient to pay the Effective Time, Parent shall provide the Exchange Agent funds representing aggregate Offer Price payable pursuant to Section 2.01(d) and the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares payable pursuant to Section 3.02(a3.03(a) (the “Exchange Payment Fund”). 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 provided for in Section 3.02(a). The Exchange Payment Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included other than to pay the Offer Price in the Exchange Fund, in direct obligations of Offer and to pay 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 Merger Consideration in the Exchange FundMerger. To Parent and Purchaser shall cause the initial deposit with the Depositary to be in an amount equal to at least $5,474,556 and, to the extent that there are losses such amount shall at any time prove to be insufficient to satisfy the purposes of the Payment Fund, shall cause to be deposited with the Depositary such amount as may be necessary, when added to the Payment Fund, to eliminate such insufficiency.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares immediately prior to the Effective Time shall not be required to take any action with respect to such investments, or the Exchange Fund diminishes exchange of their Shares 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 paymentsConsideration.
(ai) Promptly Any holder of Shares held in direct registry form through the Company’s transfer agent, VStock Transfer, LLC (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, 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 to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be entitled forthwith canceled. Payment of the applicable Merger Consideration with respect to receive, upon (i) surrender such Shares shall be made only to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or Person in whose name such Shares are registered.
(ii) receipt of an With respect to Shares held, directly or indirectly, through the Depository Trust Company (“agentDTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s message” by the Exchange Agent (or nominees and such other evidencenecessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, if anyupon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, of transfer as the Exchange Agent may reasonably request) in Company, the case of a bookPaying Agent, DTC, DTC’s nominees and such other necessary third-entry transfer of Uncertificated Sharesparty intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, 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 be deemed at any time after the Effective Time for all purposes to represent only the right to receive the applicable Merger ConsiderationConsideration as contemplated by Section 3.03(a).
(biv) If the payment of any portion of the Merger Consideration is to be paid made to a Person other than the Person in whose name the surrendered Certificate or Shares is registered on the transferred Uncertificated Share is registeredstock transfer books of the Company, it shall be a condition to such of 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 have paid all transfer or and other similar 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 Certificate the Shares surrendered, or Uncertificated Share or establish shall have established to the satisfaction of the Exchange Agent Surviving Corporation that such Tax has Taxes either have been paid or is are not payableapplicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. 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.
(d) Any portion of the Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.03(a3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year twelve 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 3.04 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the such time when such 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, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Paying Agent in the Merger (the “Exchange Paying Agent”) for the purpose of exchanging for effecting the payment of the Merger Consideration in connection with the Merger. Prior to the Effective Time, Parent shall provide the Paying Agent funds representing the aggregate Merger Consideration to be paid in respect of (i) certificates representing that immediately prior to the Effective Time represented Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective 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 Section 3.02(a) (the “Exchange Paying Agent Fund”). The Exchange Paying Agent Fund shall cause be invested by the Exchange Fund Paying Agent as directed by Parent, in its sole discretion, pending payment thereof by the Paying Agent to be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments provided for in Section 3.02(a)Shares. 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 Earnings from such investments shall be kept in the Exchange Fundsole and exclusive property of Parent, and no part of such earnings shall accrue to the benefit of holders of Shares. To the extent that there are losses with respect to such investments, or the Exchange Paying Agent 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 Paying Agent Fund lost through investments or other events so as to ensure that the Exchange Paying Agent Fund is, at all times, maintained at a level sufficient to make such payments.
(ab) Promptly As promptly as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, mail to each holder of Shares at the Effective Time, which Shares were converted into the right to receive the Merger Consideration at the Effective Time pursuant to this Agreement, 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, and shall otherwise be in such form and have such other provisions as Parent or the Paying Agent may reasonably specify) 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 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 Parent and the Exchange Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Share, less any withholding of Taxes required by Applicable Law; provided, however, that each payment to a holder of Shares acquired upon the exercise of Company 102 Options that are held by the 102 Trustee shall be paid to the 102 Trustee in accordance with the Israeli Options Tax Ruling, if obtained, and the Israeli Income Tax Ordinance. Any Certificates so surrendered shall forthwith be cancelled. 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.
(bc) 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 Paying Agent is provided and (ii) the Person requesting such payment shall pay to the Exchange Agent have paid any transfer or other similar 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 Certificate or Uncertificated Share or establish so surrendered and shall have established to the satisfaction of the Exchange Surviving Corporation and the Paying Agent that such Tax has Taxes either have been paid or is are not payablerequired to be paid.
(cd) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of Shares. From and after the Effective Time, the holders of Certificates outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided for herein or by Applicable Law. 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 forthforth in, in this Article Article 3.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Paying Agent pursuant to Section Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.(and any interest or other income earned
Appears in 1 contract
Surrender and Payment. (a) Prior to At the Effective TimeClosing, Parent the Company, Tracor and the Holder Representative 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 enter into an Exchange Agent in Agreement with the Merger (the “Exchange Agent”) Agent for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective 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”). 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 effecting the payments 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 Holders contemplated hereby. Such agreement shall provide, Parent shall among other things, that 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, shall mail to each holder of Shares at Holder a notice that the Effective Time Merger has become effective and a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Certificates and Option Documents shall pass, only upon proper delivery of the Certificates or transfer and Option Documents to the Exchange Agent in accordance with the terms of delivery specified in such transmittal letter and shall be in such form and have such other provisions as Tracor and the Company may reasonably specify) and instructions for use in effecting the surrender of the Uncertificated Shares Certificates and Option Documents for payment of the Per Share Amount of the Merger Consideration. Upon surrender of a Certificate or Option Document to the Exchange Agent) for use in , together with such exchange. Each letter of transmittal, duly executed, the holder of Shares that have been converted into the right to receive the Merger Consideration such Certificate or Option Document shall be entitled to receivereceive therefor one or more cash payments included in the Merger Consideration, upon (icalculated in accordance with Section 2.10(e), and the Certificate so surrendered shall forthwith be canceled; provided, however, that those Holders of Company Common Stock listed in the Disclosure Schedule who have executed promissory note(s) surrender in favor of the Company in connection with the acquisition of their shares of Company Common Stock or are otherwise indebted to the Company for withholding taxes or otherwise shall receive from the Exchange Agent the Per Share Amount for each of a Certificate, together with a properly completed letter the shares of transmittal, Company Common Stock owned by such Holder less the amount of principal and interest outstanding under such promissory note(s) or other indebtedness as set forth in the Disclosure Schedule (iiwhich shall be deducted from the first payment of the Per Share Amount) receipt of an “agent’s message” by and the Exchange Agent (shall in turn remit the amount of such principal and interest to the Surviving Corporation, which shall cancel such promissory note(s) or other 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 Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Shareindebtedness. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent At and after the Effective Time Time, each Certificate and each Option Document shall be deemed for all corporate purposes to evidence only the right to receive the Merger Consideration.
(b) If any portion Per Share Amount of the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Option Document, and shall not evidence any interest in, or any right to exercise the rights of a Holder of, stock in the Surviving Corporation. No interest will be paid or accrued on the cash payable upon the surrender of Certificates or Option Documents except as otherwise provided in this Agreement. If payment for any share of Company Common Stock or Company Stock Option is to be paid made to a Person other than the Person one in whose name the surrendered Certificate or the transferred Uncertificated Share Option Document surrendered for payment is registeredregistered or issued, it shall be a condition to such payment that (i) either such Certificate shall or Option Document be properly endorsed (or shall otherwise be in proper form for accompanied by an appropriate instrument of transfer) and accompanied by evidence that any applicable stock 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 taxes have been paid or is not payable.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Tracor Inc /De)
Surrender and Payment. (a) a. Prior to the 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 Exchange Agent in the Merger ▇▇▇▇▇ and Reading (the “"Exchange Agent”") for the purpose of exchanging for the Merger Consideration (i) certificates ▇▇▇▇▇ and Reading Stock Certificates formerly representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)▇▇▇▇▇ and Reading Stock, as applicable. At or prior to the Effective Time, Parent shall provide deposit with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares ▇▇▇▇▇ and Reading Stock, for exchange in accordance with this Section 3.2 through the Exchange Agent, (i) as of the Effective Time, certificates representing the ▇▇▇▇▇ and Reading Stock Merger Consideration to be issued pursuant to Section 3.1(a) and Section 3.1(b), as applicable, and (ii) promptly applied from time to making time as necessary, cash to be paid in lieu of fractional shares pursuant to Section 3.4 (such certificates for the payments provided for in Section 3.02(a▇▇▇▇▇ and Reading Stock Merger Consideration and such cash being hereinafter referred to as the "Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the ▇▇▇▇▇ and Reading Stock Merger Consideration, as applicable, in exchange for surrendered ▇▇▇▇▇ and Reading Stock Certificates formerly representing ▇▇▇▇▇ and Reading Stock pursuant to Section 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(e), 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 paymentspurpose.
(a) b. Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each holder of Shares at a ▇▇▇▇▇ and Reading Stock Certificate or Certificates, as applicable, that immediately prior to the Effective Time represented outstanding ▇▇▇▇▇ and Reading Stock a letter of transmittal and instructions for use in effecting the exchange of such ▇▇▇▇▇ and Reading Stock Certificate or Certificates, as applicable, for certificates representing the ▇▇▇▇▇ and Reading Stock Merger Consideration and, if applicable, cash in lieu of fractional shares. Provision also shall be made for holders of ▇▇▇▇▇ and Reading Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions (which and to deliver in person immediately after the Effective Time such letter of transmittal and ▇▇▇▇▇ and Reading Stock Certificates in exchange for the ▇▇▇▇▇ and Reading Stock Merger Consideration and, if applicable, cash, in lieu of fractional shares.
c. After the Effective Time, ▇▇▇▇▇ Common Stock Certificates, ▇▇▇▇▇ Common Preference Stock Certificates and Reading Common Stock Certificates shall specify that represent the delivery shall be effectedright, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares surrender thereof to the Exchange Agent) for use , together with a duly executed and properly completed letter of transmittal relating thereto, to receive in exchange therefor that number of whole shares of Parent Class A Stock, and, if applicable, cash that such exchange. Each holder of Shares that have been converted into has the right to receive pursuant to Sections 3.1 and 3.4 after giving effect to any required tax withholding, and the Merger Consideration ▇▇▇▇▇ Common Stock Certificates, ▇▇▇▇▇ Common Preference Stock Certificates and Reading Common Stock Certificates so surrendered shall be entitled to receivecanceled. No interest will be paid or will accrue on any cash amount payable upon the surrender of any such ▇▇▇▇▇ Common Stock Certificates, 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 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▇▇▇▇▇ Common Preference Stock Certificates and Reading Common Stock Certificates.
(b) d. If any portion shares of the Merger Consideration is Parent Class A Stock are to be issued and/or cash to be paid to a Person other than the Person registered holder of the ▇▇▇▇▇ Common Stock Certificates, ▇▇▇▇▇ Preference Stock Certificates or Reading Common Stock Certificates surrendered in whose name the surrendered Certificate or the transferred Uncertificated Share is registeredexchange therefor, it shall be a condition to such payment issuance that (i) either such Certificate the ▇▇▇▇▇ Common Stock Certificates, ▇▇▇▇▇ Preference Stock Certificates or Reading Common Stock 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 issuance shall pay to the Exchange Agent any transfer or other Taxes 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 satisfaction of the Exchange Agent that such Tax tax has been paid or 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 a governmental or political subdivision or any agency or instrumentality thereof.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent Newco 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 Exchange Agent in the Merger an exchange agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration Consideration, (i) certificates representing Aspen Shares (the each a “CertificatesCertificate”) or (ii) uncertificated Aspen Shares which immediately prior to the Effective Time were registered to a holder on the stock transfer books of Aspen (the “Uncertificated Shares”). At or prior to the Effective Time, Parent Newco shall provide deposit, or cause to be deposited, with the Exchange Agent funds Agent, for exchange in accordance with this Section 2.05 through the Exchange Agent, (i) evidence of shares in book-entry form representing the aggregate Merger Consideration to be paid in respect shares of the Certificates and the Uncertificated Shares Newco Stock issuable pursuant to Section 3.02(a) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares 2.04 and (ii) promptly applied to making the payments provided for cash 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 immediately available funds 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 an amount sufficient for the payment of all principal and interestcash amounts payable pursuant to Section 2.04. Newco agrees to make promptly available, directly or as otherwise directed by Parent. Any interest and other income resulting from such investments shall be kept in indirectly, to the Exchange Fund. To the extent that there are losses with respect Agent from time to such investments, or the Exchange Fund diminishes for other reasons below the level required time as needed additional cash sufficient 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 pay any dividends or other events so as distributions to ensure that the Exchange Fund is, at all times, maintained at a level sufficient which holders of Aspen Shares are entitled pursuant to make Section 2.05(f) and cash in lieu of any fractional shares of Newco Stock to which such payments.
(a) holders are entitled pursuant to Section 2.11. Promptly after the Effective TimeTime and in any event within three Business Days after the Closing Date, Parent Newco shall send, or shall cause the Exchange Agent to send, to each holder of Aspen Shares 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. All evidence of shares of Newco Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund.” Newco shall cause the Exchange Agent to deliver the Merger Consideration 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 Newco. Any interest and other income resulting from such investments shall be the property of, and paid to, Newco upon termination of the Exchange Fund.
(b) Each holder of Aspen 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, the Merger Consideration payable for in respect of each Aspen 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 Share, the Merger ConsiderationConsideration and any dividends and distributions with respect thereto as contemplated by Section 2.05(f). The shares of Newco Stock constituting Merger Consideration shall, at Newco’s option, be in uncertificated book-entry form, unless a physical certificate is required under Applicable Law.
(bc) If any portion of the Merger Consideration (or any dividends and distributions with respect thereto contemplated by 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, 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 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 Tax has transfer or similar Taxes have been paid or is are not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Aspen Shares. 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 (and any dividends and distributions with respect thereto contemplated by Section 2.05(f)) provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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 holders of Shares one year after shares of Aspen Stock twelve months following the Effective Time Closing Date shall be returned delivered to ParentNewco or as otherwise instructed by Newco, upon demand, and any such holder who has not exchanged such Aspen Shares for the applicable Merger Consideration in accordance with this Section 3.03 2.05 prior to that such time shall thereafter look only to Parent Newco for payment of the such Merger Consideration in (and any dividends and distributions with respect of such Shares thereto as contemplated by Section 2.05(f)), without any interest thereon. Notwithstanding the foregoing, Parent Newco and its Subsidiaries (including, after the Closing, the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of Aspen Shares for any amount 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 Aspen Shares immediately prior to the such time when such 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, Newco free and clear of any claims or interest of any Person previously entitled thereto.
(ef) Any portion Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.05, and in any event within two Business Days following 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 Newco Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration made available Consideration, (x) the amount of any cash payable in lieu of fractional shares to the Exchange Agent which such Person is entitled pursuant to Section 3.03(a2.11, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to pay for Shares for which rights such shares of Newco Stock with a record date on or after the Effective Time that were paid prior to receive the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the fair value Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Newco Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such Shares have been perfected 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 Newco Stock constituting the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.11, as applicable, shall be returned paid to Parentthe holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, upon demandas the case may be, as provided in this Section 2.05.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or and (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At the Effective Time, Parent shall provide and the Exchange Agent funds representing shall enter into an exchange agent agreement in form and substance reasonably satisfactory to Parent and the aggregate Merger Company. Parent shall make available to the Exchange Agent, as needed, the Stock Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant Shares. Parent shall deposit or cause to Section 3.02(a) (be deposited with the “Exchange Fund”). The Exchange Agent cash in an amount equal to the Cash Consideration to be paid in respect of the Certificates and the Uncertificated Shares, which amount shall cause represent the maximum Cash Consideration payable in connection with the First Merger assuming no holder of Company Stock shall perfect its appraisal rights. Any cash deposited with the Exchange Fund Agent to pay the Cash Consideration shall be (i) held deposited in a separate fund established for the benefit of the holders of Shares Company Stock and (ii) promptly applied to making the payments 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 3. The Such cash shall be invested by the Exchange Agent shall invest any cash included in the Exchange Fund, in as directed by Parent in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ with a remaining term at the time of acquisition thereof not in excess of 90 days, (B) money market accounts or certificates of deposit maturing within 90 days of the United States of America, obligations for which acquisition thereof and issued by a bank or trust company organized under the full faith and credit laws of the United States of America is pledged to provide for or a State thereof having a combined capital surplus in excess of $500,000,000 (a “United States Bank”), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by ▇▇▇▇▇’▇ Investors Service, Inc. with a remaining term at the payment time of all principal and interest, acquisition thereof not in excess of 90 days or as otherwise directed by Parent(D) demand deposits with any United States Bank. 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock at the Effective Time a letter of transmittal and instructions in form reasonably satisfactory to Parent and 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 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 Parent, the Company and the Exchange Agent to effect the transactions contemplated hereby.
(b) Each holder of Shares shares of Company Stock 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, the Merger Consideration payable for each Share in respect of the Company Stock represented by a such Certificate or for each such Uncertificated Share. The shares of Parent Stock constituting part of such Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Company 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 the such Merger Consideration.
(bc) 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 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 taxes have been paid or is are not payable.
(cd) 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 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.
(de) 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 thereon3.06(a) that remains unclaimed by the holders of Shares one year shares of Company Stock six months after the Effective Time shall be returned to Parent, Parent upon demanddemand by Parent (together with any interest or other income thereon), and any such holder who has not exchanged such Shares shares of Company Stock for the Merger Consideration in accordance with this Section 3.03 3.06 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority Entity) 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.
(ef) No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 3.07, 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 Section 3.06. 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 3.07 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, 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 the surrender or transfer and with a payment date subsequent to the surrender or transfer payable with respect to such securities.
(g) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a3.06(a) or Section 3.07 to pay for Shares shares of Company Stock for which appraisal rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demanddemand by Parent.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent the Company shall appoint designate a nationally recognized commercial bank or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers Parent to act as Exchange Agent in the Merger agent (the “Exchange Agent”) for the purpose benefit of exchanging for the Merger Consideration (i) certificates representing holders of Shares (the “Certificates”) or (ii) uncertificated who exchange their Shares (the “Uncertificated Shares”)in accordance with this Section 2.03. At Prior to the Effective Time, Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds Agent, for the benefit of the holders of Shares, for exchange in accordance with this Section 2.03 promptly after the Effective Time, book-entry shares representing the aggregate Merger Consideration issuable to be paid in respect holders of Shares as of the Certificates and the Uncertificated Shares Effective Time pursuant to Section 3.02(a2.02(a) (such book-entry shares of Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 2.03(c) and other amounts payable in accordance with Section 2.03(e), the “Exchange Fund”). The Exchange Agent shall cause shall, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion of the Exchange Fund to shall be invested by the Exchange Agent as directed by Parent; provided that (i) held for no such investment of or losses thereon shall relieve Parent from making the benefit payments required by this Section 2.03 or elsewhere in this Agreement, or affect the amount payable in respect of the holders Shares, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of Shares any such losses, and (ii) promptly applied no such investment shall have maturities that could prevent or delay payments to making the payments provided for in Section 3.02(a)be made pursuant to this Agreement. Any interest or other income from such investments shall be paid to and become income of Parent. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included other than as specified 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 paymentsthis Section 2.03(a).
(ab) Promptly As promptly as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to senddistribute the shares of Parent Common Stock into which the Shares have been converted pursuant to the Merger, to each holder which, in the case of Shares at distributed in the Effective Time a letter of transmittal and instructions (which shall specify that the delivery Distribution, shall be effected, distributed on the same basis as Shares were distributed in the Distribution 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 Persons who received Shares in such exchangethe Distribution. Each holder of Shares shall be entitled to receive in respect of the Shares 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 Merger Consideration pursuant to this Section 2.03(b) (and cash in lieu of fractional shares of Parent Common Stock, as contemplated by Section 2.03(e), and any dividends or distributions and other amounts pursuant to Section 2.03(c)). The Exchange Agent shall not be entitled to receivevote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder, upon except as contemplated by Section 2.03(c).
(ic) surrender Subject to the Exchange Agent following sentence, no dividends or other distributions declared after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” Parent Common Stock that are not able to be distributed by the Exchange Agent promptly after the Effective Time, whether due to a legal impediment to such distribution or otherwise. Subject to the effect of abandoned property, escheat, Tax or other Applicable Laws, following the distribution of any such previously undistributed shares of Parent Common Stock, there shall be paid to the record holder of such shares of Parent Common Stock, without interest, (or such other evidencei) at the time of the distribution, if any, the amount of transfer as the Exchange Agent may reasonably request) cash payable in the case lieu of a book-entry transfer fractional share of Uncertificated SharesParent Common Stock to which such holder is entitled pursuant to Section 2.03(e) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock; and (ii) at the appropriate payment date, the Merger Consideration payable for each Share represented by amount of dividends or other distributions with a Certificate record date after the Effective Time but prior to the distribution of such whole shares of Parent Common Stock and a payment date subsequent to the distribution of such whole shares of Parent Common Stock.
(d) All shares of Parent Common Stock issued upon the exchange of SpinCo Common Stock in accordance with the terms of this Section 2.03 (including any cash paid pursuant to Section 2.03(c) or for each Uncertificated Share. Until so surrendered Section 2.03(e)) shall be deemed to have been issued or transferredpaid, as the case may be, each in full satisfaction of all rights pertaining to such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger Considerationshares of SpinCo Common Stock.
(be) If No certificates or scrip representing fractional shares of Parent Common Stock or book-entry credit of the same shall be issued on conversion of SpinCo Common Stock, and such fractional share interests will not entitle the owner thereof to vote, or to any portion other rights of a stockholder of Parent. All fractional shares of Parent Common Stock that a holder of shares of SpinCo Common Stock would otherwise be entitled to receive as a result of the Merger Consideration is shall be aggregated by the Exchange Agent. The Exchange Agent shall cause the whole shares obtained thereby to be paid sold on behalf of such holders of shares of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger, in the open market or otherwise, in each case at then-prevailing market prices, and in no case later than five Business Days after the time of the Distribution. The Exchange Agent shall make available the net proceeds thereof, subject to the deduction of the amount of any withholding Taxes as contemplated in Section 2.03(i) and brokerage charges, commissions and conveyance and similar Taxes, on a Person pro rata basis, without interest, as soon as practicable to the holders of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger.
(f) The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or SpinCo Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock or SpinCo Common Stock (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 issuance of stock by SpinCo in connection with the Separation or shall otherwise be in proper form for transfer or, in other transactions contemplated by this Agreement or the case of Uncertificated Shares, that such documentation as may be reasonably requested by the Exchange Agent is provided Separation Agreement and (ii) any extraordinary cash dividends with respect to SpinCo Common Stock) with a record date occurring on or after the Person requesting such payment shall pay date hereof and prior to the Exchange Agent Effective Time; provided that nothing in this Section 2.03(f) shall be construed to permit SpinCo, Parent or Merger Sub to take any transfer or other Taxes required as a result action with respect to its securities that otherwise is prohibited by the terms 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 payablethis Agreement.
(c) 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.
(dg) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) Fund (and including proceeds of any interest or other income earned thereoninvestment thereof) that remains unclaimed by undistributed to the former holders of Shares one year on the date that is twelve months after the Effective Time shall be returned delivered to Parent, upon demand, and any such holder former holders of Shares who has have not exchanged such Shares for the Merger Consideration theretofore received shares of Parent Common Stock in accordance with this Section 3.03 prior to that time 2.03 shall thereafter look only to Parent for payment of the Merger Consideration to which they are entitled pursuant to Section 2.02(a), any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 2.03(e) and any dividends or other distributions with respect to the Parent Common Stock to which they are entitled pursuant to Section 2.03(c) (subject to any abandoned property, escheat or similar Applicable Law).
(h) None of such Shares without any interest thereon. Notwithstanding Parent, the foregoingCompany, Parent SpinCo, Merger Sub, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Shares Person for any amount paid Merger Consideration from the Exchange Fund (or dividends or distributions with respect to Parent Common Stock) or other cash delivered to a public official pursuant to applicable any abandoned property, escheat or similar lawsApplicable Law. Any amounts portion of the Exchange Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to the such time when as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeshall, to the extent permitted by Applicable Law, become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(ei) Any portion Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation, Parent and Merger Consideration made available Sub shall be entitled to deduct and withhold from the amounts otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of Tax law. If the Exchange Agent pursuant Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to Section 3.03(a) to pay for Shares for which rights to receive payment the holder of the fair value shares of SpinCo Common Stock in respect of which the Exchange Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, made such Shares have been perfected deduction and withholding.
(j) From and after the Effective Time, the stock transfer books of SpinCo shall be returned to Parentclosed, upon demandand there shall be no further registration of transfers of Shares thereafter on the records of SpinCo.
Appears in 1 contract
Sources: Merger Agreement (Westinghouse Air Brake Technologies Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent Buyer shall appoint a bank or trust company or similar entity an agent, reasonably acceptable satisfactory to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”"EXCHANGE AGENT") for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Common Stock (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”"CERTIFICATES"). At Prior to the Effective Time, Parent Buyer shall provide deposit or cause to be deposited with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate fund established for the benefit of the holders of Shares and (ii) promptly applied shares of Company Common Stock, cash sufficient to making pay the payments provided aggregate Merger Consideration required to be paid for in Section 3.02(a)all of the Certificates at the Effective Time. The Any cash deposited with the Exchange Fund Agent shall not be used for any purpose that is not provided for herein. The other than as set forth in this Article 2 and shall be invested by the Exchange Agent shall invest any cash included in as directed by Buyer or the Exchange Fund, in Surviving Corporation in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of AmericaAmerica with a remaining term at the time of acquisition thereof not in excess of 90 days, obligations for which (B) money market accounts or certificates of deposit maturing within 90 days of the full faith acquisition thereof and credit issued by a bank or trust company organized under the laws of the United States of America is pledged or a State thereof having a combined capital surplus in excess of $500,000,000 (a "UNITED STATES BANK"), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor's Corporation and P1 by ▇▇▇▇▇'▇ Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. The earnings and interest thereon shall be paid to provide for the payment of all principal and interest, Buyer or as otherwise directed by ParentBuyer directs. 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.
(a) Promptly after the Effective Time (but in no event later than seven Business Days after the Effective Time), Parent Buyer shall send, or shall cause the Exchange Agent to send, to each holder of Shares record of 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 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, 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.
(b) 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.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger disbursing agent (the “Exchange Disbursing Agent”) for the purpose payment of exchanging for the Per-Share Merger Consideration (i) upon surrender of certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (Shares. Parent will enter into a disbursing agent agreement with the “Uncertificated Shares”Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 2.7(b). At the Effective Time, Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration deposit or cause to be paid deposited with the Disbursing Agent cash in respect of an aggregate amount necessary to make the Certificates and the Uncertificated Shares payments pursuant to Section 3.02(a2.7(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, Parent shall assume that no stockholder of the Company will perfect any right to appraisal of his, her or its Shares. The Exchange Disbursing Agent shall cause invest the Exchange Fund to as directed by Parent; provided that such investments shall be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments 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, (ii) 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 (iii) commercial paper rated the highest quality by Parenteither ▇▇▇▇▇’▇ 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 2.7(b). Any interest and other income resulting from such investments investment shall be kept in become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.7(b) shall be promptly paid to Parent. To the extent that there are losses with respect to such investments, or Parent shall promptly replenish the Exchange Fund diminishes for other reasons below to the level required to make prompt payments extent of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of the any investment losses. The Exchange Fund lost through investments or shall not be used for any other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentspurpose.
(ab) Promptly Parent and the Surviving Corporation shall instruct the Disbursing Agent to mail promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, Time to each Person who was a record holder as of Shares at the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”) or non-certificated Shares represented by book-entry (“Book-Entry Shares”), and whose Shares were converted into the right to receive Per-Share Merger Consideration pursuant to Section 2.7(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 Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Book-Entry Shares to the Exchange Disbursing Agent) and instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for payment of the Per-Share Merger Consideration. Upon surrender of a Certificate or transfer of a Book-Entry Share to the Disbursing Agent for cancellation, together with such exchange. Each letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of Shares that have been converted into the right to receive the Merger Consideration such Certificate or Book-Entry Share 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 bookPer-entry transfer of Uncertificated Shares, the Share Merger Consideration payable for each Share represented by a in respect of that Certificate or for each Uncertificated Book-Entry Share. Until so surrendered or transferred, as the case may beless any required withholding of Taxes, each and such Certificate or Uncertificated Book-Entry Share so surrendered 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 surrender of the Merger ConsiderationCertificates or Book-Entry Shares.
(bc) If any portion of the 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, 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 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 Tax has been paid or is not payableapplicable. Payment of the Per-Share Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered.
(cd) After Until surrendered in accordance with the provisions of this Section 2.8, each Certificate or Book-Entry Share (other than Certificates representing Shares or Book-Entry Shares owned by Parent, Merger Subsidiary or any other wholly-owned Subsidiary of Parent, Shares held by the Company or a 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 Per-Share Merger Consideration.
(e) At and after the Effective Time, there shall be no further registration of transfers of Shares 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 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 Per-Share 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 previously represented by such Certificates or Book-Entry Shares, as applicable. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Surviving CorporationCorporation for any reason, they such Certificates or Book-Entry Shares shall be canceled and exchanged for represent the right to receive the Per-Share Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 3II. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be closed.
(df) Any portion of the Per-Share Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of pay for Shares one year after the Effective Time for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent. At any time more than twelve (12) months after the Effective Time, the Disbursing Agent shall upon demanddemand of Parent deliver to Parent any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates or Book-Entry Shares (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, and any such holder who has not exchanged such holders of Certificates or Book-Entry Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingthis Agreement, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Per-Share Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or similar lawsBook-Entry Shares held by them. Any amounts remaining unclaimed by holders of Shares immediately prior to the such time when such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental unit or agency, shall, to the extent permitted by Applicable applicable Law, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(e) Any portion . 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 a Book-Entry Share for any Per-Share Merger Consideration made available delivered in respect of such Certificate or Book-Entry Share to the Exchange Agent a public official pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parentany abandoned property, upon demandescheat or other similar Law.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent Purchaser shall appoint designate 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 Exchange Agent in the Merger paying agent (the “Exchange Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of Certificates (ias defined below) that, immediately prior to the Effective Time, represent Common Shares entitled to payment of the Merger Consideration pursuant to Section 1.2. Immediately prior to the Effective Time, Purchaser shall deposit, or cause to be deposited, in trust with the Paying Agent in cash the aggregate Merger Consideration into which Common Shares shall have been converted pursuant to Section 1.2, such amount being hereinafter referred to as the “Payment Fund.”
(b) Promptly after the Effective Time, the Paying Agent shall mail to each record holder of certificates representing that, immediately prior to the Effective Time, represent Common Shares (the “Certificates”) a form of letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent and instructions for use in surrendering such Certificates and receiving the Merger Consideration in respect thereof. Upon the surrender of each such Certificate, together with a duly executed letter of transmittal and any other required documents, the Paying Agent shall, as soon as practicable, pay the holder of such Certificate an amount equal to the product of (x) the Merger Consideration multiplied by (y) the number of Common Shares formerly represented by such Certificate, less any required withholding taxes, in consideration therefor, and such Certificate shall be cancelled. Until so surrendered, each such Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or (iiby any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) uncertificated Shares (shall represent solely the “Uncertificated Shares”). At the Effective Time, Parent shall provide the Exchange Agent funds representing right to receive 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”)relating thereto. The Exchange Paying Agent shall cause invest the Exchange Payment Fund to be as directed by Purchaser (i) held for so long as such directions do not impair the benefit rights of the holders of Shares and (iiCommon Shares) promptly applied to making the payments 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, or money market funds substantially all the assets of which are invested in direct obligations of, the United States of America, or by any agency the obligations for of which are backed by 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 paid to Purchaser, and no interest or other income shall be paid or accrued on the Exchange FundMerger Consideration to the holders of Common Shares. To Subject to Section 1.3(c), the extent that there are losses with respect Paying Agent shall, pursuant to such investmentsirrevocable instructions, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of pay the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion set forth in this Section 1.3 out of the Exchange Payment Fund. The Payment Fund lost through investments or shall not be used for any purpose other events so than as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(a) Promptly after the Effective Time, 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 exchangeprovided herein. Each holder of Shares that have been converted into the right to receive If 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, 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.
(b) If any portion of the Merger Consideration thereof) is to be paid delivered to any individual, corporation, trust, association, unincorporated association, estate, partnership, joint venture, limited liability company, Governmental Authority or other legal entity (each, a Person “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 payment right to receive such Merger Consideration that (i) either such the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer or, in the case of Uncertificated Sharestransfer, that such documentation as may the signatures on the Certificate shall be reasonably requested by the Exchange Agent is provided properly guaranteed, and (ii) that the Person requesting surrendering such payment Common Shares shall pay to the Exchange Paying Agent any transfer or 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 surrendered, or Uncertificated Share or shall establish to the satisfaction of the Exchange Paying Agent that such Tax has taxes have been paid or are not applicable. In the event any Certificate shall have been lost, stolen or destroyed, the Paying Agent shall be required to pay the full Merger Consideration in respect of any Common Shares represented by such Certificate; provided, however, that Purchaser may require the owner of such lost, stolen or destroyed Certificate to execute and deliver to the Paying Agent a form of affidavit claiming such Certificate to be lost, stolen or destroyed in form and substance reasonably satisfactory to Purchaser, and the posting by such owner of a bond in such amount as Purchaser may determine is not payablereasonably necessary as indemnity against any claim that may be made against Purchaser or the Paying Agent.
(c) After At any time following the date which is 135 days after the Effective Time, Surviving Corporation may require that the Paying Agent shall deliver to Surviving Corporation all cash, Certificates and other documents in its possession relating to the transactions contemplated by this Agreement. Thereafter, each holder of a Certificate (other than Certificates representing Purchaser Shares, Common Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company, LFSRI Shares or Dissenting Shares) may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor the aggregate Merger Consideration relating thereto, without any interest or other income thereon. Notwithstanding the foregoing, none of Purchaser, Merger Sub, the Surviving Corporation, the Company or the Paying Agent shall be liable to any Person in respect of any cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any such Certificates shall not have been surrendered immediately prior to such date on which any payment pursuant to this Section 1.3 would otherwise escheat to or become the property of any Governmental Authority, the cash payment in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interests of any Person previously entitled thereto.
(d) Immediately prior to the Effective Time, the stock transfer books of the Company shall be closed, and, after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Surviving Corporation of Sharesany Common Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCorporation or the Paying Agent, they shall be canceled surrendered and exchanged cancelled in return for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(d) 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 one year 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 aggregate Merger Consideration relating thereto, as provided 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretothis Section 1.3.
(e) Any portion From and after the Effective Time, all holders of Certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time (other than the Certificates representing Purchaser Shares) shall cease to have any rights with respect to such Common Shares except (i) holders of Common Shares that are not Dissenting Shares may surrender such Certificates in exchange for the Merger Consideration made available pursuant to the Exchange Agent this Agreement, (ii) holders of Dissenting Shares may perfect any rights of appraisal as a holder of Dissenting Shares that such holders may have pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment 262 of the fair value DGCL and (iii) holders of Dissenting Shares who fail to perfect or withdraw or otherwise lose the right to appraisal may surrender such Shares have been perfected shall be returned Certificates in exchange for the Merger Consideration pursuant to Parent, upon demandthis Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “"Exchange Agent”") for the purpose of exchanging certificates representing shares of Common Stock (the "Certificates") for the Merger Consideration (i) certificates representing Shares (Consideration, and Parent and Exchange Agent shall enter into an exchange agreement which shall, in form and substance, be reasonably acceptable to the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)Company. At Prior to the Effective Time, Parent shall provide deposit or cause to be deposited with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate fund established for the benefit of the holders of Shares and (ii) promptly applied shares of Common Stock, cash sufficient to making pay the payments provided aggregate Merger Consideration required to be paid for in Section 3.02(a)all of the Certificates at the Effective Time. The For purposes of determining the Merger Consideration to be so deposited, Parent shall assume that no holder of shares of Common Stock will perfect appraisal rights with respect to such shares. Any cash deposited with the Exchange Fund Agent shall not be used for any purpose that is not provided for herein. The other than as set forth in this Article 2 and shall be invested by the Exchange Agent shall invest any cash included in as directed by Parent or the Exchange Fund, in Surviving Corporation in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of AmericaAmerica with a remaining term at the time of acquisition thereof not in excess of 90 days, obligations for which (B) money market accounts or certificates of deposit maturing within 90 days of the full faith acquisition thereof and credit issued by a bank or trust company organized under the laws of the United States of America is pledged or a State thereof having a combined capital surplus in excess of $500,000,000 (a "United States Bank"), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor's Corporation and P1 by Moody's Investors Service, Inc. with a remaining term at the time of ▇▇▇▇▇▇ition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. The earnings and interest thereon shall be paid to provide for the payment of all principal and interest, Parent or as otherwise directed by ParentParent directs. 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 soon 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.
practicable (abut not more than three Business Days) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares record of shares of Common Stock at the Effective Time Time, a letter of transmittal and instructions for use in effecting the surrender of a Certificate in exchange for payment of the Merger Consideration (which shall (i) be in a form reasonably acceptable to each of Parent and the Company and (ii) 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 shares of Common Stock 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) the Merger Consideration in respect of the Common Stock represented by a Certificate. Such payment of the Merger Consideration shall be sent to such holder of shares of Common Stock promptly after receipt of an “agent’s message” such Certificate and letter of transmittal 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 Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated ShareAgent. 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 such Merger Consideration.
(bc) 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 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 tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Common Stock. 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 32.
(de) Any portion of the Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon2.04(a) that remains unclaimed by the holders of Shares one year shares of Common Stock twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Common Stock for the Merger Consideration in accordance with this Section 3.03 2.04 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 shares of Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Common Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(ef) Any portion of the Merger Consideration made available to deposited with the Exchange Agent pursuant to Section 3.03(a2.04(a) to pay for Shares shares for which appraisal rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parentthe Surviving Corporation, upon demand.
Appears in 1 contract
Sources: Merger Agreement (V F Corp)
Surrender and Payment. (a) Prior Immediately prior to the Effective Time, Parent shall appoint deposit or shall cause to be deposited, with a bank nationally recognized financial institution selected by Parent with the Company’s prior approval (such approval not to be unreasonably withheld or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger delayed) (the “Exchange Paying Agent”), for the benefit of the Company’s stockholders (other than holders of Dissenting Shares or Excluded Shares), a cash amount in immediately available funds necessary for the Paying Agent to make payments contemplated by Section 3.02(a) (such cash being referred to as the “Exchange Fund”). With respect to any Dissenting Shares, Parent shall only be required to deposit or cause to be deposited with the Paying Agent funds sufficient to pay the aggregate Merger Consideration payable in respect of such Dissenting Shares if the holder thereof fails to perfect or effectively withdraws or losses its appraisal rights under the DGCL. The Paying Agent shall also act as the agent for the Company’s stockholders for the purpose of exchanging for receiving and holding the Merger Consideration (istockholders’(i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares represented by book-entry (the “Uncertificated Shares”)) but shall acquire no rights or interests in Shares represented thereby. At the Effective Time, The Paying Agent agreement pursuant to which Parent shall provide appoint the Paying Agent shall be in form and substance reasonably acceptable to the Company and Parent. The Paying Agent shall invest the Exchange Fund as directed by Parent. 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 3.02
(a) shall be promptly returned to the Surviving Corporation. The Paying Agent funds representing shall make delivery of the aggregate Merger Consideration to be paid in respect out of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”). 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 provided for in Section 3.02(a)accordance with this Agreement. The Exchange Fund shall not be used for any purpose that is not expressly 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 paymentsthis Agreement.
(ab) (i) Promptly after the Effective TimeTime (and in any event within two (2) Business Days thereafter), Parent shall send, or the Surviving Corporation shall cause the Exchange Paying Agent to send, mail to each holder of record of a Certificate representing Shares at the Effective Time (other than holders of Excluded Shares) (A) 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 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. 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, affidavits of transfer loss in lieu thereof as the Exchange Agent may reasonably request) provided in the case of a book-entry transfer of Uncertificated Shares, 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.
(b) 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.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.Section
Appears in 1 contract
Sources: Merger Agreement (PharMerica CORP)
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger an agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”), in each case for the aggregate Merger Consideration payable to each holder of shares of Company Stock. At Immediately prior to the Effective Time, the Company shall have Freely Available Cash in an amount not less than the sum of (x) $165.0 million and (y) the aggregate amount received by the Company pursuant to the exercise of Company Stock Options after the date of this Agreement and before the Effective Time (such sum, the “Company Payable Merger Consideration”) available to (A) make the Company Cash Deposit and (B) pay the Option Payment and the RSA Payment. Immediately prior to the Effective Time, the Company shall deposit with the Exchange Agent, for the benefit of the holders of shares of Company Stock outstanding immediately prior to the Effective Time, for payment through the Exchange Agent in accordance with this Section 2.03, an amount equal to the Company Payable Merger Consideration less the sum of the Option Payment and the RSA Payment (together with the Additional Company Deposit, the “Company Cash Deposit”). The Company may make an additional deposit of Freely Available Cash which has not been reserved to pay the Option Payment and the RSA Payment with the Exchange Agent (the “Additional Company Cash Deposit”). The Company Cash Deposit shall be used solely and exclusively for purposes of paying the Merger Consideration in respect of the Certificates and the Uncertificated Shares Table of Contents and shall not be used to satisfy any other obligations of the Company or any of its Subsidiaries. If the Effective Time does not occur by the second Business Day after the Company deposits the Company Cash Deposit with the Exchange Agent, the Exchange Agent shall by the third Business Day after such deposit refund the Company Cash Deposit to the Company by wire transfer of immediately available funds. Immediately prior to the Effective Time, Parent shall provide make available to the Exchange Agent funds representing Agent, for the aggregate benefit of the holders of Company Stock outstanding immediately prior to the Effective Time, an amount equal to (a) the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares less (b) the amount of the Company Cash Deposit. The funds provided to the Exchange Agent pursuant to this Section 3.02(a) (2.03 are referred to herein as the “Exchange Fund”). 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 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.
(a) Promptly Within two Business Days after the Effective TimeClosing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares 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. .
(b) Each holder of Shares shares of Company Stock 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, the Merger Consideration payable for each Share in respect of the Company Stock 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 such Merger Consideration.
(bc) 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 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 tax has been paid or is not payable.
(cd) 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 Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Netiq Corp)
Surrender and Payment. (a) Prior At or prior to the anticipated Effective Time, Parent and Merger Sub shall appoint a bank an exchange agent, which will be Parent’s transfer agent or trust company or similar entity reasonably other mutually acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger exchange agent (the “Exchange Agent”) for the purpose of exchanging shares of Common Stock for the Per Share Merger Consideration in accordance with this Section 2.02. Promptly following the date hereof, and in any event no later than 15 days prior to the Closing Date, Parent and Merger Sub shall cause the Exchange Agent or Stakeholder Representative, as applicable, to send to the Stockholders (i) certificates representing Shares a letter of transmittal, substantially in the form attached hereto as Exhibit G, but subject to review and finalization by the parties in a manner consistent with this Agreement and approval of the Exchange Agent (the “CertificatesLetter of Transmittal”) or and (ii) uncertificated Shares solely with respect to each Designated Stockholder, an accredited investor certification, substantially in the form attached hereto as Exhibit H (the “Uncertificated SharesAccredited Investor Certification”). , together with instructions for effecting the surrender of shares of Common Stock in exchange for the Per Share Merger Consideration.
(b) At or prior to the Effective Time, Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds representing the aggregate Merger Consideration to be paid Agent, in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be (i) held trust for the benefit of the holders Stockholders (other than any Cancelled Shares) for exchange in accordance with the Spreadsheet, (i) a copy of Parent’s corporate resolutions evidencing the issue of book entry shares (initially issued to and registered in the name of the Exchange Agent, as the initial holder of record) representing the number of shares of Parent Common Stock sufficient to pay to the Stockholders in aggregate the Closing Equity Consideration and acceptance of the one share of common stock of the Surviving Corporation as par value payment on the Merger Consideration Shares and (ii) promptly applied an amount in cash sufficient to making pay the payments provided for in Section 3.02(a)Stockholders the Closing Cash Consideration. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Closing Equity Consideration and Closing Cash Consideration out of the Exchange Fund. Except as specified in this Section 2.02, the Exchange Fund shall not be used for any purpose that is not provided for hereinother purpose. The Exchange Agent shall invest any cash included in If a Stockholder delivers, no later than two Business Days prior to the Exchange Fundanticipated Closing Date, in direct obligations a properly completed and duly executed (A) Letter of the United States Transmittal surrendering such Stockholder’s shares of America, obligations for which the full faith Common Stock 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 (B) solely with respect to such investmentseach Designated Stockholder, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments an Accredited Investor Certification, respectively, effective as of the Merger Consideration as contemplated herebyClosing, 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to sendpay the Per Share Closing Consideration in respect of such Stockholder’s shares of Common Stock at the Closing. Notwithstanding Section 2.01(a), Parent shall pay the cash value of the Per Share Closing Equity Consideration (based on the Per Share Parent Share Value on the Business Day prior to the Closing Date) that would otherwise be issued to each holder Stockholder holding less than 40,000 shares 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 Common Stock immediately prior 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, 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.
(b) 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 payableClosing.
(c) 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 of Sharesshares of Common Stock. If, From and after the Effective Time, Certificates or Uncertificated Shares are presented the Stockholders shall cease to have any rights with respect to shares of Common Stock except the Surviving Corporation, they shall be canceled and exchanged for right to receive the Merger Consideration consideration provided for, and in accordance with the procedures set forth, in this Article 3Section 2.02 or as otherwise provided herein or by applicable law. If, after the Effective Time, certificates representing shares of Common Stock are presented to the Exchange Agent, the Surviving Corporation or Parent, such certificates shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Section 2.02.
(d) Any portion No dividends or other distributions with respect to shares of Parent Common Stock issued in the Merger shall be paid to the holder of any unsurrendered shares of Common Stock until such shares of Common Stock are surrendered as provided in this Section 2.02. Following such surrender, subject to the effect of escheat, Tax or other applicable law, there shall be paid, without interest, to the record holder of the Merger Consideration made available to shares of Parent Common Stock issued in exchange therefor (i) at the Exchange Agent pursuant to Section 3.03(a) (time of such surrender, all dividends and any interest or other income earned thereon) that remains unclaimed by the holders distributions payable in respect of Shares one year such shares of Parent Common Stock with a record date 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 a payment date on or prior to that time shall thereafter look only the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. Subject to Section 2.01(e), for payment purposes of the Merger Consideration dividends or other distributions in respect of such Shares without any interest thereon. Notwithstanding the foregoingshares of Parent Common Stock, all shares of Parent shall not Common Stock to be liable to any holder of Shares for any amount paid to a public official issued pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior the Merger shall be entitled to dividends pursuant to the time when such amounts would otherwise escheat to or become property immediately preceding sentence as if issued and outstanding as 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 theretoEffective Time.
(e) Any portion of the Merger Closing Equity Consideration made available to and Closing Cash Consideration deposited with the Exchange Agent pursuant to this Section 3.03(a) 2.02 to pay for Dissenting Shares for which appraisal rights to receive payment of the fair value of such Shares shall have been perfected shall be returned to ParentParent upon the settlement or final and non appealable adjudication of any claim for appraisal rights asserted with respect to such Dissenting Shares.
(f) All Per Share Merger Consideration issued and paid to a Stockholder upon conversion of the Common Stock in accordance with the terms hereof shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Common Stock.
(g) The parties acknowledge that as a result of the cash payments made to Stakeholders in lieu of equity consideration pursuant to the last sentence of Section 2.02(b) and Section 2.05(a), upon demandthe number of shares of Parent Common Stock ultimately issued in connection with the Merger is less than the Merger Consideration Shares and the amount of cash paid in connection with the Merger is greater than the Merger Consideration Cash.
Appears in 1 contract
Surrender and Payment. (a) Prior At least five days prior to the Effective Time, Parent the Company 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 Exchange Agent in the Merger an exchange agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration aggregate: (i) certificates Preferred Merger Consideration for Share Certificates representing Shares (the “Certificates”) or Preferred Shares, (ii) uncertificated Shares Election Share Consideration for the applicable Share Certificates and Election Forms and (the “Uncertificated iii) Common Share Consideration for Share Certificates representing Non-Electing Common Shares”). At the Effective TimeClosing, Parent Buyer or MergerCo shall provide deposit, or shall cause to be deposited with the Exchange Agent funds representing Agent, (x) into a separate account established for the aggregate Merger Consideration to be paid in respect benefit of the Certificates and the Uncertificated Shares pursuant to Section 3.02(aStockholders (other than Electing Shareholders) (the “Exchange Fund”). The Exchange Agent shall cause , by wire transfer of immediately available funds, an amount equal to the aggregate Closing Preferred Consideration, which Exchange Fund to shall be increased in accordance with Section 2.11, by the aggregate amounts of all Additional Preferred Amounts and Common Share Amounts; and (iy) held into a separate account established for the benefit of the holders Electing Shareholders and/or the Holders of Preferred Shares by wire transfer of immediately available funds, an amount equal to the Total Election Amount (the “Election Fund”).
(b) At the close of business on the day (the “Calculation Date”) which is one business day prior to the date on which the Closing is scheduled to occur, the president or vice president of finance of the Company shall deliver to Buyer a certificate setting forth the Company’s calculations for and as of the Closing Date of (i) the Management Incentive Bonus Amount, Transaction Expenses (by payee), and Indebtedness, and (ii) promptly applied to making the payments 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 Closing Preferred Consideration and 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 paymentsTotal Election Amount.
(ac) Promptly after the Effective Time, Parent Each Holder of Non-Electing Common Shares 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 receivepayments, upon (i) surrender to the Exchange Agent of a Certificate, the applicable Share Certificates together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by any Common Share Amounts payable pursuant to Section 2.11 as of the Exchange Agent (or time of such other evidencesurrender, if anyit being understood that no payment with respect to Non-Electing Common Shares shall be made at the Closing, and that each Holder of transfer as Non-Electing Common Shares shall only receive payment for Non-Electing Common Shares to the Exchange Agent may reasonably request) in extent that Common Share Amounts become payable pursuant to Section 2.11. Payment of Common Share Amounts payable pursuant to Section 2.11 after the case date of a bookHolder’s surrender of Share Certificates representing Non-entry transfer Electing Common Shares will be made as promptly as possible after the time of Uncertificated Shares, the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Shareapplicable distribution thereof. Until so surrendered or transferred, as the case may besurrendered, each such Share Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Common Share Consideration in respect thereof.
(d) Each Holder of Preferred Shares shall receive payments, upon surrender to the Exchange Agent of the applicable Share Certificates together with a properly completed letter of transmittal, in the following manner: (i) if such surrender of Share Certificates and letter of transmittal is made at or prior to the Closing, then such holder shall receive payment of the Closing Preferred Consideration, at the Closing; (ii) if such surrender of Share Certificates and letter of transmittal shall have been made after the Closing, then such holder shall receive payment of the Closing Preferred Consideration (plus any Additional Preferred Amounts payable pursuant to Section 2.11 and any payments payable to such Holder pursuant to Section 2.05(f) as of the time of such surrender); and (iii) payments of Additional Preferred Amounts payable pursuant to Section 2.11 and any payments payable to such Holder pursuant to Section 2.05(f) after the date of such surrender will be made as promptly as possible after the time upon which such amounts are payable. Until so surrendered, each such Share Certificate shall represent after the Effective Time for all purposes the right to receive the Preferred Merger Consideration.
(be) The Exchange Agent shall pay from the Election Fund within five days following the Election Deadline to each Electing Shareholder an amount equal to the Election Share Consideration for each Common Share owned by such holder as of the date of this Agreement. Such payment of the applicable Election Share Consideration shall be the only payment to the Electing Shareholders under this Agreement and the Electing Shareholders shall not be entitled to any Common Share Amounts. For the avoidance of doubt, no payment of Election Share Consideration shall be made in respect of any Share Certificate issued after the date of this Agreement.
(f) The amount, if any, remaining in the Election Fund after the Exchange Agent shall have paid all Election Share Consideration to the Electing Shareholders as provided in subsection (e) above, shall be promptly paid Pro Rata to the Holders of Preferred Shares.
(g) No later than five business days prior to the date on which the Closing is scheduled to occur, the Company shall send or cause the Exchange Agent to send to each Stockholder a letter of transmittal for use in exchanging such Common Shares or Preferred Shares for the applicable Common Share Consideration pursuant to subsection (c) above, Preferred Merger Consideration pursuant to subsection (d) above or Election Share Consideration pursuant to subsection (e) above.
(h) If any portion of the applicable Common Share Consideration, Election Share Consideration or Preferred Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Share Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such the Share Certificate 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 Share Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax tax has been paid or is not payable.
(ci) After the Effective Time, there shall be no further registration of transfers of Common Shares or Preferred Shares. If, after the Effective Time, Share Certificates or Uncertificated Shares are presented to the Exchange Agent and/or the Surviving Corporation, they shall be canceled and exchanged for the applicable Common Share Consideration, Election Share Consideration or Preferred Merger Consideration provided forConsideration, as applicable pursuant to the terms hereof. For purposes of such exchange, the canceled Common Shares and in accordance with the procedures set forthPreferred Shares shall be deemed surrendered pursuant to Section 2.04(b), in this Article 3.
(dSection 2.05(c) Any portion or Section 2.05(d) as of the Merger Consideration made available date presented to the Exchange Agent pursuant to Section 3.03(aor the Surviving Corporation, as applicable.
(j) Any amount in the Exchange Fund (and any interest or other income earned thereon) that remains unclaimed by the holders Stockholders following a period of Shares one year after 18 months immediately following the Effective Time shall be returned by the Exchange Agent to Parent, upon demandthe Surviving Corporation, and any such holder Stockholder who has not exchanged such its Common Shares or Preferred Shares for the applicable Common Share Consideration or Preferred Merger Consideration in accordance with this Section 3.03 prior to that such time shall thereafter look only to Parent the Surviving Corporation for payment of the Merger Consideration in respect of such Shares thereof without any interest thereon. Notwithstanding .
(k) At the foregoingClosing, Parent Buyer shall not be liable cause the Surviving Corporation, in accordance with the provisions of the Management Incentive Bonus Plan as in effect as of the date hereof, to: (i) pay to any holder each Participant its share of Shares for any amount paid to a public official the Management Incentive Bonus Amount (other than the Initial Escrowed Bonus Amount) and (ii) place in escrow the Initial Escrowed Bonus Amount pursuant to applicable abandoned propertythe Management Escrow Agreement. If there shall be after the Closing any distribution from the Escrow Account other than to Buyer or to the Stockholders’ Representative pursuant to Section 2.12(c), escheat or similar lawsthen promptly after such distribution the Surviving Corporation shall, in accordance with the provisions of the Management Incentive Bonus Plan, pay to each Participant its share of the Additional Management Incentive Bonus Amount payable in respect of any such distribution in accordance with Section 2.11, provided that any such distribution of an Additional Management Incentive Bonus Amount that then constitutes an Additional Escrowed Bonus Amount shall be placed in escrow pursuant to the Management Escrow Agreement. Any amounts remaining unclaimed by holders If and to the extent any of Shares immediately the Escrowed Bonus Amount is forfeited as a result of the termination of the employment of Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ prior to the time when vesting thereof, 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned distributed to ParentHolders of Common Shares, upon demandHolders of Preferred Shares, and holders of In-the-Money Vested Options in accordance with Section 2.11 hereof.
Appears in 1 contract
Surrender and Payment. ({a) Prior to the Effective Time, Parent shall appoint a commercial 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 (the '"Exchange Agent") and enter into an exchange agent agreement with the Exchange Agent in reasonably acceptable to the Merger (Company {the “'"Exchange Agent”Agent Agreement") for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing Shares (payable in respect of the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)shares of Company Common Stock. At As of the Effective Time, Parent shall provide deposit with 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”)Agent. The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares shares of Company Common Stock. for exchange in accordance with this 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 (iiy) promptly applied cash sufficient to making pay the payments provided for in aggregate Cash Consideration payable pursuant to Section 3.02(a2.03(a)(i). The Exchange Fund shall not be used for any purpose that is not provided for herein. The Parent agrees to make available, directly or indirectly, to the Exchange Agent shall invest from time to time as needed additional cash and/or shares of Parent Common Stock sufficient to pay 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 dividends or other events so as distributions to ensure that the Exchange Fund is, at all times, maintained at a level sufficient which such holders are entitled pursuant to make Section 2.04<0 and cash in lieu of any fractional share of Parent Common Stock to which such payments.
(a) 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 holder of Shares 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. 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 Al I certificates (or such other evidence, if any, evidence of transfer as the Exchange Agent may reasonably request) shares in the case of a book-entry transfer of Uncertificated Shares, 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.
(bform) 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.
(c) 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 cash deposited with the procedures set forth, in this Article 3.
(d) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to this Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year after the Effective Time 2 04 shall be returned referred to Parent, upon demand, and any such holder who has not exchanged such Shares for 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 accordance with this Section 3.03 prior to the Exchange Fund as directed by Parent; provided that time such cash shall thereafter look only to Parent for payment of 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 respect lieu of such Shares without any interest thereon. Notwithstanding fractional interests: provided.further, that to the foregoingextent necessary to pay the Merger Consideration, Parent shall not promptly cause to be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available provided additional funds to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights the benefit of holders of Company Common Stock entitled to receive payment 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 fair value of such Shares have been perfected shall be returned to Parent, upon demandExchange Fund.
Appears in 1 contract
Sources: Merger Agreement
Surrender and Payment. (a) Prior to the Effective Time, Parent Buyer 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 Exchange Agent in the Merger depositary (the “Exchange AgentDepositary”) for the purpose of exchanging certificates representing Company Common Shares for the Merger Consideration (i) certificates representing Shares Amalgamation Consideration. The Depositary shall at all times be a United States commercial bank having a combined capital and surplus of at least $500,000,000. Pursuant to the terms of the Escrow Agreement to be entered into pursuant to the Pledge and Escrow Procedures between the Escrow Agent, Buyer and the Company (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated SharesEscrow Agreement”). At , by no later than immediately prior to the Effective Time, Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates Buyer and the Uncertificated Shares pursuant to Section 3.02(a) Company shall instruct the escrow agent (the “Exchange Escrow Agent”) under the Escrow Agreement to deposit with the Depositary $65,618,962 in cash (the “Escrowed Amalgamation Consideration Amount”) from the assets then currently held in the escrow fund relating to the Escrow Agreement (the “Escrow Fund”) and to pay to Buyer any amounts remaining in the Escrow Fund after payment of the Escrowed Amalgamation Consideration Amount and the Calypso Payment (as defined herein). The Exchange Agent By no later than immediately prior to the Effective Time, Buyer shall cause deposit with the Exchange Fund to be (i) held for the benefit Depositary cash in an amount in excess of the holders Escrowed Amalgamation Consideration Amount necessary, when combined with the Escrowed Amalgamation Consideration Amount, for payment of Shares and (ii) promptly applied to making the payments Amalgamation Consideration as provided for in Section 3.02(a). The Exchange Fund shall not be used for any purpose 2.1 upon surrender of a certificate or certificates that is not provided for herein. The Exchange Agent shall invest any cash included immediately prior to the Effective Time represented outstanding Company Common Shares in the Exchange Fund, manner provided 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 Parentthis Section 2.2. 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.
(a) Promptly after the Effective Time, Parent shall Buyer will send, or shall will cause the Exchange Agent Depositary to send, but in no event later than five business days after the Effective Time, to each holder of record of Company Common 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 Common Shares to the Exchange AgentDepositary) and instructions for use in such exchange. effecting the surrender of Company Common Shares in exchange for the Amalgamation Consideration.
(b) Each holder of Company Common Shares that have been converted into the a right to receive the Merger Consideration shall be entitled to receiveAmalgamation Consideration, upon (i) surrender to the Exchange Agent Depositary of a Certificatecertificate or certificates properly representing such Company Common 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 Company Common Shares, will be entitled to receive the Merger Amalgamation Consideration payable for each Share represented by a Certificate or for each Uncertificated Sharein respect of such Company Common 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 the Merger such Amalgamation Consideration.
(bc) If any portion of the Merger Amalgamation Consideration is to be paid to a Person (as defined herein) other than the Person registered holder of the Company Common 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 Depositary any transfer or other Taxes (as defined herein) required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share Company Common Shares or establish to the satisfaction of the Exchange Agent Depositary that such Tax (as defined herein) has been paid or is not payable.
(c) After . Buyer or the Effective Time, there Depositary shall be no further registration entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement such amounts as Buyer or the Depositary are required to deduct and withhold under the Internal Revenue Code of transfers 1986, as amended (the “Code”), or any provision of Shares. Ifstate, after the Effective Timelocal or foreign tax law, Certificates or Uncertificated Shares are presented with respect to the Surviving Corporationmaking of such payment. To the extent that amounts are so withheld by Buyer or the Depositary, they such withheld amounts shall be canceled and exchanged treated for the Merger Consideration provided for, and in accordance with the procedures set forth, in all purposes of this Article 3.
(d) Any portion of the Merger Consideration made available Agreement as having been paid 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 one year 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 Person in respect of whom such Shares without deduction and withholding was made by Buyer or the Depositary. For purposes of this Agreement, “Person” means any interest thereon. Notwithstanding the foregoingnatural person, Parent shall not be liable to firm, individual, company, corporation, limited liability company, partnership, association, joint venture, company, business trust, trust or any holder of Shares for any amount paid to other entity or organization, whether incorporated or unincorporated, including a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretoEntity (as defined herein).
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At Prior to the Effective Time, Parent shall provide make available to the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the shares of Company Stock represented by Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (Shares. Such funds may be invested by the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be as directed by Parent; provided that (i) held no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the holders shareholders of Shares the Company in the amount of any such losses and (ii) promptly applied to making the payments provided for such investments shall only be 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 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 Standard & Poor’s Corporation or ▇▇▇▇▇’▇ Investors Service, or as otherwise directed by ParentInc., respectively. Any interest and other or income resulting from produced by such investments shall will be kept in payable to the Exchange FundSurviving Corporation or Parent, as Parent directs. To The parties acknowledge and agree that such funds are owned by Parent for Tax purposes, until paid pursuant to the extent that there are losses with respect to terms hereof and, accordingly, any income earned on such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments amounts will be treated as income 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.
(a) Parent. Promptly after the Effective TimeTime (but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock at the Effective Time notice advising such holder of the effectiveness of the Merger, which notice shall include appropriate transmittal instructions (including, if applicable, a letter of transmittal and instructions (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 to the Exchange Agent) , for use in such exchange. .
(b) Each holder of Shares shares of Company Stock 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, the Merger Consideration payable for in respect of each Share share of the Company Stock 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 such Merger Consideration.
(bc) 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 satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cd) 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, in this Article 32.
(de) 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 thereon2.03(a) that remains unclaimed by the holders of Shares one year shares of Company Stock 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock 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 shares, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsApplicable Laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(ef) Any portion of Prior to the Merger Consideration made available Effective Time, Parent and the Company shall cooperate in good faith to establish customary procedures with the Exchange Agent with respect to the prompt transmission to the Depository Trust Company (“DTC”) or its nominee of immediately available funds of an aggregate amount of Merger Consideration with respect to the number of shares of Company Stock held of record by DTC or such nominee immediately prior to the Effective Time.
(g) Parent, Exchange Agent, and the Company, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to Section 3.03(a) this Agreement such amounts as it is required to pay for Shares for which rights deduct and withhold with respect to receive the making of such payment under the Code, or any other applicable federal, state, local or foreign Tax law. If Parent or the Exchange Agent determines that an amount is required to be deducted and withheld, Parent shall provide the payee reasonable advanced written notice of the fair value intent to deduct and withhold, which shall include a copy of the estimated amount to be deducted and withheld. To the extent that amounts are so withheld and timely remitted by Parent or the Exchange Agent, as applicable, to the applicable Governmental Authority, such Shares have been perfected amounts shall be returned treated for all purposes of this Agreement as having been paid to Parent, upon demandthe Person in respect of which such deduction and withholding was made. The parties agree that no withholding is currently required under Applicable Law with respect to consideration payable hereunder (except as contemplated by Section 2.04).
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At or prior to the Effective 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”). 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 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.
(ab) Promptly after the Effective Time, Parent or the Surviving Corporation 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 CertificateCertificate (or affidavit that such Certificate has been lost, stolen or destroyed as provided in Section 3.8), 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 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.
(bc) 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.
(cd) 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 forthforth in, in this Article 3.
(de) 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 one year twelve 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 the Surviving Corporation for payment of the Merger 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 for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an agent, reasonably acceptable satisfactory to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Common Stock (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At Prior to the Effective Time, Parent shall provide deposit or cause to be deposited with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate fund established for the benefit of the holders of Shares and (ii) promptly applied shares of Company Common Stock, cash sufficient to making pay the payments provided aggregate Merger Consideration required to be paid for in Section 3.02(a)all of the Certificates at the Effective Time. The Any cash deposited with the Exchange Fund Agent shall not be used for any purpose that is not provided for herein. The other than as set forth in this Article 2 and shall be invested by the Exchange Agent shall invest any cash included in as directed by Parent or the Exchange Fund, in Surviving Corporation in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of AmericaAmerica with a remaining term at the time of acquisition thereof not in excess of 90 days, obligations for which (B) money market accounts or certificates of deposit maturing within 90 days of the full faith acquisition thereof and credit issued by a bank or trust company organized under the laws of the United States of America is pledged or a State thereof having a combined capital surplus in excess of $500,000,000 (a “United States Bank”), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by ▇▇▇▇▇’▇ Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. The earnings and interest thereon shall be paid to provide for the payment of all principal and interest, Parent or as otherwise directed by ParentParent directs. 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares record of 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 Shares to the Exchange Agent) for use in such exchange. .
(b) Each holder of Shares shares of Company Common Stock 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, the Merger Consideration payable for each Share in respect of the Company Common Stock represented by a Certificate or for each Uncertificated Sharesuch Certificate. 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 such Merger Consideration.
(bc) 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 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 tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(de) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a2.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year shares of Company Common Stock six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority governmental 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.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Morgan Stanley)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank American Stock Transfer & Trust Company as the exchange agent (or trust company or similar entity reasonably acceptable such other nationally recognized exchange agent agreed to between the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger 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 exchanging for the Merger Consideration (i) Consideration, certificates representing Shares shares of Company Common Stock (the 15 “Certificates”) or (ii) uncertificated Shares (;” provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the “Uncertificated Shares”ownership of shares of Company Common Stock). At or prior to the Effective Time, Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds representing the aggregate Aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Payment Fund”). 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 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 fund diminishes for other reasons any reason below the level required to make prompt payments payment of the Merger Consideration as contemplated herebyConsideration, Parent and the Surviving Corporation shall promptly replace or restore restore, or cause to be replaced or restored, the lost portion of the Exchange Fund lost through investments or other events such fund so as to ensure that the Exchange Fund 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 (ai) 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 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, in connection with the exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such 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 Shares 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. Each holder of Shares shares of Company Common Stock that have been converted into the right to receive the 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 Sharesshares of Company Common Stock, and, in each case, delivery to the Merger Consideration payable for each Share represented Exchange Agent of such other documents as may reasonably be requested by a Certificate or for each Uncertificated Sharethe 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 the Merger Consideration.
(b) 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.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.Merger
Appears in 1 contract
Sources: Merger Agreement (Lionbridge Technologies Inc /De/)
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”)) and exchanging the Warrant Consideration for each share of Company Stock subject to the Company Warrants. At or prior to the Effective Time, Parent shall provide make available to the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant and the Warrant Consideration to Section 3.02(a) be paid in respect of the Company Warrants (but not, for the “Exchange Fund”avoidance of doubt, the In-the-Money Company Stock Option Merger Consideration or the Company RSU Merger Consideration to be paid in respect of In-the-Money Company Stock Options and Company RSUs, respectively). The All cash deposited with 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 provided for in Section 3.02(a). The Exchange Fund shall may 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 interestthis Agreement, or as otherwise directed agreed by Parentthe Company and Parent before the Effective Time. 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 investment of the Exchange Fund lost through investments or other events so as will be payable to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(a) Surviving Corporation. Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary, any Subsidiary of the Company or Parent, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal) 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. .
(b) Each holder of Shares shares of Company Stock 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, the Merger Consideration payable for each Share in respect of the Company Stock 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 such Merger Consideration. No interest or dividends will be paid or accrue on any Merger Consideration payable to holders of Certificates or Uncertificated Shares.
(bc) 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 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 Tax tax has been paid or is not payable.
(cd) Promptly after the Effective Time, Parent shall cause the Exchange Agent to pay to each holder of a Company Warrant as of immediately prior to the Effective Time the Warrant Consideration for each share of Company Common Stock subject to such Company Warrant, payable to such holder pursuant to Section 2.03 in accordance with joint written instructions provided by the Company and the holder of such Company Warrant to the Exchange Agent.
(e) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock or transfers of Company Warrants. 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, in this Article 32. If, after the Effective Time, Company Warrants are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Warrant Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(df) 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 thereon2.04(a) that remains unclaimed by the holders of Shares shares of Company Stock one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares 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 shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock immediately prior to the such time when 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, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(eg) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for 2.05 in respect of any Dissenting Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an exchange agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) for to act as the purpose of exchanging for exchange agent in the Merger Consideration Merger.
(b) As promptly as practicable following the date hereof and in any event not later than three Business Days thereafter, the Exchange Agent shall mail to (i) certificates representing Shares each Company Equityholder, a letter of transmittal in substantially the form attached as Exhibit C (a “Letter of Transmittal”), and (ii) each Company Equityholder other than an Excluded Equityholder, a lock-up agreement in substantially the form attached as Exhibit D (a “CertificatesLock-Up Agreement”), and, as applicable, instructions for each in effecting the surrender of Company Securities in exchange for the applicable portion of Merger Consideration pursuant to Section 2.08(b). Except as set forth in Section 2.10(c), the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) uncertificated Shares five Business Days after receipt of a Letter of Transmittal and Lock-Up Agreement 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, pay to such Company Equityholder (x) a cash amount equal to the “Uncertificated Shares”)Estimated Closing Cash Merger Consideration multiplied by such Company Equityholder’s Allocation Percentage and (y) shares of Parent Stock representing such Company Equityholder’s Allocation Percentage of the Closing Stock Merger Consideration. At Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable by the Exchange Agent. Until so surrendered, each outstanding Company Security shall be deemed from and after the Effective Time, Parent shall provide for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.08(b). If after the Effective Time, any Company Security is presented to the Exchange Agent funds representing the aggregate Merger Consideration Agent, it shall be cancelled and exchanged as provided in this Section 2.10.
(c) For any cash amount to be paid in respect to employees of the Certificates Company who are United States Persons, such amount shall be paid to and processed through the Surviving Entity’s payroll system. With respect to 102 In-Money Options and 3(i) In-Money Options any consideration payable in accordance with this Section 2.10 shall be paid to the 102 Trustee to be held and released in accordance with Section 102 of the Ordinance and the Uncertificated Shares pursuant to Section 3.02(a) regulations and rules promulgated thereunder the Option Tax Ruling (or any other approval or instructions from the “Exchange Fund”ITA received either by the Company or Parent, including the Interim Options Ruling). The Exchange Agent 102 Trustee shall cause withhold any amounts required in accordance with the Exchange applicable Law (including the provisions of Section 102 of the Ordinance and the regulations and rules promulgated thereunder, or any other approval or instructions from the ITA received either by the Company or Parent, including the Interim Options Ruling) prior to release of funds to such holder. For the avoidance of doubt, any amount released from the Escrow Fund and any Contingent Amount to be paid to a holder of 102 Stock, shall be paid to the 102 Trustee to be held and released in accordance with Section 102 of the Ordinance and the regulations and rules promulgated thereunder the Option Tax Ruling (ior any other approval or instructions from the ITA received either by the Company or Parent, including the Interim Options Ruling), and subject to withholding pursuant thereto.
(d) held Unless otherwise provided herein, no interest shall be paid or accrued on the Merger Consideration for the benefit of the holders of Shares and (ii) promptly applied to making the payments 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 paymentsCompany Equityholders.
(a) Promptly after the Effective Time, 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, 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.
(b) 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.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (OptimizeRx Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or bank, trust company or similar entity nationally recognized stockholder services provider reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent the paying agent for the holders of Company Common Stock in connection with the Merger (the “Exchange Paying Agent”). At or substantially concurrently with the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent an amount in cash sufficient to pay the aggregate Merger Consideration pursuant to Section 1.4(a)(i) (such cash being hereinafter referred to as the “Payment Fund”). Except as contemplated by this Section 2.1(a), the Payment Fund shall not be used for any other purpose other than to pay the purpose Merger Consideration to holders of exchanging shares of Company Common Stock as of immediately prior to the Effective Time. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares of Company Common Stock for the Merger Consideration Consideration.
(b) As soon as reasonably practicable following the Effective Time, Parent or the Surviving Corporation will cause the Paying Agent to mail to each holder of record (as of immediately prior to the Effective Time) of (i) a certificate or certificates representing Shares that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the “Certificates”) or ); and (ii) uncertificated Shares shares of Company Common Stock that represented outstanding shares of Company Common Stock (the “Uncertificated Shares”). At , in each case, that were converted into the Effective Time, Parent shall provide right to receive 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(a1.4(a)(i) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be (iA) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares at the Effective Time a letter of transmittal in customary form and instructions reasonably acceptable to the Company (which shall will 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 Paying Agent); and (B) instructions for use in such exchange. Each holder effecting the surrender of the Certificates and Uncertificated Shares that have been converted into the right to receive in exchange for the Merger Consideration shall payable in respect thereof pursuant to Section 1.4(a)(i). Upon surrender of Certificates for cancellation to the Paying Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Paying Agent, the holders of such Certificates will be entitled to receive, upon (i) surrender in exchange therefor, an amount in cash equal to the Exchange Agent Merger Consideration payable in respect of a the number of shares of Company Common Stock represented by such Certificate, together with and the Certificates so surrendered will forthwith be cancelled. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Certificate is registered, it will be a condition precedent of payment that the Certificate so surrendered will be properly completed letter endorsed or will be otherwise in proper form for transfer, and the Person requesting such payment will have paid any transfer or other Taxes required by reason of transmittalthe payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered or will have established to the satisfaction of the Paying Agent or the Surviving Corporation that such Taxes either have been paid or are not payable. Notwithstanding the foregoing, or (ii) upon 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 holders of such Uncertificated Shares will be entitled to receive, in exchange therefor, an amount in cash equal to the Merger Consideration payable for each Share in respect of the number of shares of Company Common Stock represented by a Certificate such holder’s transferred Uncertificated Shares, and the transferred Uncertificated Shares so surrendered will be cancelled. The Paying Agent will accept such Certificates and transferred Uncertificated Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be paid or accrued for each the benefit of holders of the Certificates and Uncertificated ShareShares on the Merger Consideration payable upon the surrender of such Certificates and Uncertificated Shares pursuant to this Section 2.1(b). Until so surrendered or transferredsurrendered, as the case may be, each such Certificate or outstanding Certificates and Uncertificated Share shall represent Shares will be deemed from and after the Effective Time for all purposes to evidence only the right to receive the Merger Consideration.
(b) If any portion , without interest thereon, payable in respect thereof pursuant to Section 1.4(a)(i). Notwithstanding anything to the contrary in this Agreement, no holder of the Merger Consideration is Uncertificated Shares will be required to be paid to provide a Person other than the Person in whose name the surrendered Certificate or an executed letter of transmittal to the transferred Uncertificated Share is registered, it shall be a condition Paying Agent in order to such receive the 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 holder is provided and (ii) the Person requesting such payment shall pay entitled to the Exchange Agent any transfer or other Taxes required as a result of such payment receive pursuant 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 payableSection 1.4(a)(i).
(c) After All Merger Consideration paid upon the surrender of and in exchange for shares of Company Common Stock in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Common Stock, subject, however, to Section 2.2. At the Effective Time, the stock transfer books of the Surviving Corporation will be closed and there shall be no further registration of transfers on the stock transfer books of Sharesthe Company or the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Paying Agent, the Surviving CorporationCorporation or Parent for transfer or any other reason, they shall be canceled and exchanged for the Merger Consideration provided for, and payable in accordance with respect of the procedures set forth, in this Article 3shares of Company Common Stock previously represented by such Certificates or Uncertificated Shares.
(d) Any portion of the Merger Consideration made available Payment Fund that remains undistributed to the Exchange Agent pursuant to Section 3.03(aformer stockholders of the Company on the date that is twelve (12) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year months after the Effective Time Closing Date shall be returned delivered to Parent, upon demand, and and, subject to Section 2.1(e), any such holder former holders of shares of Company Common Stock who has have not exchanged such Shares for theretofore received the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to the Surviving Corporation and Parent for (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the payment of any Merger Consideration that may be payable upon surrender of any Certificates or Uncertificated Shares formerly held by such holders, as determined pursuant to this Agreement, without any interest thereon.
(e) None of the Surviving Corporation, Parent, Merger Subsidiary, or the Paying Agent shall be liable to any holder of Company Common Stock for any amount of Merger Consideration properly delivered to a public official pursuant to any applicable abandoned property law, escheat law or similar law, rule, regulation, ordinance, code, statute, judgment, order, decree, ruling, treaty, convention, governmental directive, injunction or other binding directive, U.S. or non-U.S., of any governmental entity, including common law (“Law”). If any Certificate or Uncertificated Share has not been surrendered prior to the time that is immediately prior to the time at which 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 Certificate or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when such amounts Uncertificated Share would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental body, agency or authority, any such amount shall, to the extent permitted by Applicable applicable Law, become the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.free
Appears in 1 contract
Sources: Agreement and Plan of Merger (Renewable Energy Group, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an exchange agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or and (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At As of the Effective Time, Parent shall provide deposit with 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 Payment Fund”). 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 provided for in Section 3.02(a). The Exchange Payment Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included invested 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 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 pledged inadequate to provide for pay the payment amounts to which holders of all principal and interest, or as otherwise directed by Parent. Any interest and other income resulting from such investments shares of Company Stock 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 herebyentitled under Section 2.03, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly replace or restore to deposit in trust additional cash with the portion 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 Fund lost through investments or other events so as to ensure that Agent, in connection with the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(a) 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 Shares 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. .
(b) Each holder of Shares shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receivereceive the Merger Consideration in respect of the Company Stock represented by a Certificate or Uncertificated Share, 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 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 such Merger Consideration.
(bc) 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 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 Tax has been paid or is not payable.
(cd) 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 Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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) Payment Fund that remains unclaimed by the holders of Shares shares of Company Stock one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(e) Any portion of . Notwithstanding anything herein to the contrary, the Merger Consideration payable in respect of unvested Company Restricted Shares shall be payable pursuant to Section 2.06 and not pursuant to this Section 2.04 and no deposit shall be made available to with the Exchange Agent by the Company or Parent pursuant to this Section 3.03(a) 2.04, and the procedures of this Section 2.04 in respect of holders of shares of Company Stock shall not apply, with respect to pay for Shares for which rights to receive payment such holders’ shares of the fair value of such Shares have been perfected shall be returned to Parent, upon demandunvested Restricted Stock.
Appears in 1 contract
Sources: Merger Agreement (Metasolv Inc)
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) if any or (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At Prior to the Effective Time, Parent shall provide make available to 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) (Shares. Such funds may be invested by the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be as directed by Parent; provided that (i) held no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the holders stockholders of Shares the Company in the amount of any such losses and (ii) promptly applied to making the payments provided for such investments shall only be 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 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 Standard & Poor’s Corporation or ▇▇▇▇▇’▇ Investors Service, or as otherwise directed by ParentInc., respectively. Any interest and other or income resulting from produced by such investments shall will be kept in payable to the Exchange FundSurviving Corporation or Parent, as Parent directs. 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.
(a) Promptly after the Effective TimeTime (but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares 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. , as applicable.
(b) Each holder of Shares shares of Company Stock 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, the Merger Consideration payable for each Share in respect of the Company Stock 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 such Merger Consideration.
(bc) 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 satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cd) 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, in this Article 32.
(de) Any portion of the Merger Consideration made available to 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 one year shares of Company Stock twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock 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 shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsApplicable Laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(ef) Any portion of Prior to the Merger Consideration made available Effective Time, Parent and the Company shall cooperate in good faith to establish customary procedures with the Exchange Agent pursuant with respect to Section 3.03(athe prompt transmission to the Depository Trust Company (“DTC”) or its nominee of immediately available funds of an aggregate amount of Merger Consideration with respect to pay for Shares for which rights the number of shares of Company Stock held of record by DTC or such nominee immediately prior to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demandEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Chemtura CORP)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an agent (the "Exchange Agent") reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) Sarnia for the purpose of exchanging certificates representing shares of Sarnia Common Stock (collectively, the "Shares") for the Merger Cash Consideration (i) certificates representing Shares (pursuant to the “Certificates”) or (ii) uncertificated Shares (Exchange Agent Agreement substantially in the “Uncertificated Shares”form attached hereto as Exhibit 3.03(a). At Within three (3) business days after the Effective Time, Parent shall provide transfer to the Exchange Agent funds representing the aggregate Merger Cash Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”)Shares. 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 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.
(a) Promptly after the Effective Time, 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 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).
(b) for use in such exchange. Each holder of Shares that have been converted into At the right to receive the Merger Consideration shall be entitled to receiveEffective Time and at any time thereafter, upon (i) the surrender to the Exchange Agent of a Certificatecertificate or certificates representing the holder's Shares, together with a properly completed letter of transmittaltransmittal covering such Shares, Parent shall pay, or (ii) receipt of an “agent’s message” by shall cause the Exchange Agent (or to pay, the amount of cash equal to the Per Share Cash Consideration times the number of Shares covered by the letter of transmittal and each such other evidence, if any, of transfer as the Exchange Agent may reasonably request) holder shall thereupon have an interest in the case Promissory Note being issued into escrow as provided above equal to the Per Share Note Consideration times the number of a book-entry transfer Shares covered by the letter of Uncertificated transmittal. Except with respect to the Promissory Note, no interest will be paid or accrued on the cash payable to the holders of Shares, 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 certificate representing Shares shall, after the Effective Time Time, represent, for all purposes purposes, only the right to receive the Merger Consideration.
(bc) In the event that Parent incurs or suffers any Damages (as defined in Section 11.01 of this Agreement), then Parent shall, subject to the provisions of Article 11 of this Agreement, decrease the principal amount of the Promissory Note by the amount of such Damages in excess of One Hundred Thousand Dollars ($100,000) (the "Indemnity Amount").
(d) In the event that any holders of Shares fail to surrender certificates to the Exchange Agent within twelve (12) months after the Effective Time, the principal amount of the Promissory Note shall be reduced by the number of Shares not surrendered multiplied by the Per Share Note Consideration. Notwithstanding the above, Parent shall remain liable to pay the Per Share Note Consideration to any holder of Sarnia Common Stock who thereafter surrenders a certificate or certificates representing the holder's shares of Sarnia Common Stock, together with a properly completed letter of transmittal covering such Shares.
(e) Parent shall direct the Escrow Agent to pay to the Shareholder Representative, out of the interest payable on the Promissory Note and/or any principal amount payable under the Promissory Note, the amount requested by the Shareholder Representative, for any reasonable out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel and accountants) incurred by the Shareholder Representative in connection with his acting as Shareholder Representative, including, without limitation, as a result of his opposition of any Disputed Amount.
(f) If any portion of the Merger Consideration is to be paid to or on behalf of a Person other than a registered holder of the Person 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.
(cg) After the Effective Time, there shall be no further registration of or transfers of Shares. If, after the Effective Time, Certificates or Uncertificated certificates representing Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(dh) Any portion of the Merger Cash 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 one year six (6) months after the Effective Time shall be returned to Parent, Parent upon demand, and any such holder who has not exchanged such its Shares for the Merger Consideration in accordance with this Section 3.03 prior to that such 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretoholder's Shares.
(ei) Any portion In the event that any certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed and, if required by Parent, the posting of a bond in such reasonable amount as Parent may direct, the Exchange Agent shall pay in exchange for such certificate the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demanddeliverable in respect thereof as provided herein.
Appears in 1 contract
Sources: Merger Agreement (Sarnia Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall will appoint a bank or trust company or similar entity an exchange agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger OUTD (the “Exchange Agent”) for the purpose of exchanging OUTD Certificates for Merger Consideration. As soon as reasonably practicable after the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At Effective Time, but in no event more than two Business Days following the Effective 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”). 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 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.
(a) Promptly after the Effective Time, Parent shall will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record of shares of OUTD Common Stock, whose shares of OUTD Common Stock were converted into the Effective Time right to receive the Merger Consideration, a letter of transmittal and instructions (which shall will specify that the delivery shall will be effected, and risk of loss and title shall will pass, only upon proper delivery of the OUTD Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Parent and OUTD may reasonably agree, including instructions for use in effecting the surrender of OUTD Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Parent will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of OUTD Common Stock, an amount of cash sufficient to be paid pursuant to Section 2.1, payable upon due surrender of the OUTD Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article II. All cash deposited with the Exchange Agent is referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions, deliver the Merger Consideration out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. The Exchange Agent will invest any cash included in the Exchange Fund as directed by Parent; provided, that no such exchangeinvestment or losses thereon will affect the Merger Consideration payable to holders of shares of OUTD Common Stock entitled to receive such consideration and Parent will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of OUTD Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Parent.
(c) Each holder of Shares shares of OUTD Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a Certificatean OUTD Certificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount that such holder has the right to receive in cash, pursuant to Section 2.1 and this Article II. The Merger Consideration will be paid as promptly as practicable (ii) receipt by mail or, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of an “agent’s message” OUTD Certificate) after receipt by the Exchange Agent of the OUTD Certificate and letter of transmittal in accordance with the foregoing, and in any event no later than three Business Days following the later to occur of (or such other evidencei) the Effective Time, if any, of transfer as and (ii) the Exchange Agent may reasonably request) Agent’s receipt of the OUTD Certificate and letter of transmittal in accordance with the case of a book-entry transfer of Uncertificated Shares, the foregoing. No interest will be paid or accrued on any Merger Consideration or on any unpaid dividends and distributions 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 Considerationholders of OUTD Certificates.
(bd) If any portion of the Merger Consideration cash payment is to be paid made to a Person other than the Person in whose name the applicable surrendered OUTD Certificate or the transferred Uncertificated Share is registered, it shall will be a condition to of such payment that (i) either such the surrendered OUTD Certificate shall will 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 will pay to the Exchange Agent any transfer or other similar Taxes required as a result by reason of the making of such cash payment to a Person other than the registered holder of such the surrendered OUTD Certificate or Uncertificated Share or will establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(ce) After the Effective Time, there shall will be no further registration of transfers of Sharesshares of OUTD Common Stock. From and after the Effective Time, the holders of OUTD Certificates representing shares of OUTD Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of OUTD Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, OUTD Certificates or Uncertificated Shares are presented to the Surviving CorporationExchange Agent or Parent, they shall will be canceled cancelled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, forth in this Article 3II. Notwithstanding anything to the contrary contained in this Agreement, the Surviving Corporation is obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by OUTD on shares of OUTD Common Stock in accordance with the terms of this Agreement prior to the date hereof and which remain unpaid at the Effective Time.
(df) 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 holders of Shares shares of OUTD Common Stock one year after the Effective Time shall will be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his or her shares of OUTD Common Stock for the Merger Consideration in accordance with this Section 3.03 Article II prior to that time shall will thereafter look only to Parent for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of OUTD Common Stock. Notwithstanding the foregoing, Parent shall not none of Parent, Merger Sub, the Surviving Corporation or OUTD will be liable to any holder of Shares shares of OUTD Common Stock for any amount paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts Merger Consideration remaining unclaimed by holders of Shares shares of OUTD Common Stock immediately prior to the such time when as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomewill, to the extent permitted by Applicable Lawapplicable Laws, become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(eg) Any portion of the Merger Consideration made available to Parent and the Exchange Agent shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement to any Person who was a holder of OUTD Common Stock immediately prior to the Effective Time such amounts as Parent or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code or any other provision of federal, state, local or foreign Tax Law. To the extent that amounts are so withheld (and paid to the applicable Governmental Authority) by Parent or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid.
(h) In the event any OUTD Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed OUTD Certificates, upon the making of an affidavit of that fact by the holder thereof, such Merger Consideration as may be required pursuant to Section 3.03(a) 2.1; provided, however, that Parent may, in its discretion and as a condition precedent to pay for Shares for which rights to receive payment of the fair value issuance thereof, require the owner of such Shares have been perfected shall be returned lost, stolen or destroyed OUTD Certificates to deliver an agreement of indemnification in form reasonably satisfactory to Parent, upon demandor, if reasonably required by Parent, a bond in such reasonable sum as Parent may direct, as indemnity against any claim that may be made against Parent or the Exchange Agent in respect of OUTD Certificates alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall Dai-ichi will appoint a U.S. 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 Exchange Agent in the Merger Protective (the “"Exchange Agent”") for the purpose of exchanging Certificates for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)Consideration. At the Effective 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”). 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 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 soon 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.
(a) Promptly reasonably practicable after the Effective Time, Parent shall but in no event more than two Business Days following the Effective Time, Dai-ichi will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record of shares of Common Stock as of the Effective Time Time, whose shares of Common Stock were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions (which shall will specify that the delivery shall will be effected, and risk of loss and title shall will pass, only upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Protective and Dai-ichi may reasonably agree, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Dai-ichi will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of Common Stock, an amount of cash in United States dollars sufficient to make the payments contemplated by Section 2.06, payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III. All cash deposited with the Exchange Agent is referred to in this Agreement as the "Exchange Fund." The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate Merger Consideration out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. The Exchange Agent will invest any cash included in the Exchange Fund as directed by Dai-ichi; provided that no such exchangeinvestment or losses thereon will affect the Merger Consideration payable to holders of shares of Common Stock entitled to receive such consideration and Dai-ichi will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Dai-ichi.
(c) Each holder of Shares shares of Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount, if any, that such holder has the right to receive in cash pursuant to Section 2.06 and this Article III. The Merger Consideration will be paid as promptly as practicable (iiby mail or, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of a Certificate) after receipt of an “agent’s message” by the Exchange Agent (of the Certificate and letter of transmittal in accordance with the foregoing. No interest will be paid 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 accrued on any Merger Consideration or on any unpaid dividends and distributions 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 Considerationholders of Certificates.
(bd) If any portion of the 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 is registered, it shall will 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, 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 will pay to the Exchange Agent any transfer or other similar 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 Certificate or will 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 will be a condition to the registration thereof that the surrendered Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration will pay to the Exchange Agent any transfer or other similar Taxes required as a result of such 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 Tax has been paid or is not payable.
(ce) After the Effective Time, there shall will be no further registration of transfers of Sharesshares of Common Stock outstanding prior to the Effective Time other than as provided for in Section 2.06(d). From and after the Effective Time, the holders of Certificates representing shares of Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of 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 Surviving CorporationExchange Agent or Dai-ichi, they shall will be canceled cancelled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, forth in Article II and this Article III. Notwithstanding anything to the contrary contained in this Article 3Agreement, the Surviving Corporation is obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by Protective with respect to shares of Common Stock in accordance with the terms of this Agreement prior to the Effective Time which remain unpaid at the Effective Time.
(df) 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 holders of Shares shares of Common Stock one year after the Effective Time shall will be returned to ParentDai-ichi, upon demand, and any such holder who has not exchanged such Shares his or her shares of Common Stock for the Merger Consideration in accordance with this Section 3.03 Article III prior to that time shall will thereafter look only to Parent Dai-ichi for payment delivery of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding holder's shares of Common Stock.
(g) Neither Dai-ichi, the foregoing, Parent shall not Surviving Corporation nor the Exchange Agent will be liable to any former holder of Shares Common Stock for any amount paid portion of the Merger Consideration delivered to a public official any Government Authority pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately In the event any Certificate has not been surrendered prior to the time when date as of which such amounts would otherwise escheat Certificate or the Merger Consideration payable upon the surrender thereof escheats to or become otherwise becomes the property of any Governmental Authority shall becomeAuthority, to the extent permitted by Applicable LawDai-ichi, the property of Parent, free Surviving Corporation and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Exchange Agent will be permitted to comply with such Laws and the Merger Consideration made available otherwise payable upon the surrender of such Certificate will be treated for all purposes under this Agreement as having been paid to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment holder of the fair value shares of Common Stock represented by such Shares have been perfected shall be returned to Parent, upon demandCertificate.
Appears in 1 contract
Surrender and Payment. (a) Prior to As promptly as practicable after the Effective Timedate of this Agreement, Parent Purchaser and the Equityholders’ Representative shall appoint enter into a bank or trust company or similar entity reasonably acceptable to payments administration agreement with the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger Payments Administrator (the “Exchange AgentPayments Agreement”), on terms and conditions reasonably satisfactory to Purchaser, pursuant to which the Payments Administrator will agree to serve as payments administrator in connection with the transactions contemplated hereby.
(b) As promptly as practicable after the date of this Agreement, the Company shall cause the Payments Administrator to deliver, or cause to be delivered, to each holder of record of Company Stock a letter of transmittal in substantially the form attached hereto as Exhibit G (the “Letter of Transmittal”), to be completed and delivered by each Equityholder to effect the exchange of such Equityholder’s Company Stock for the purpose payment of exchanging for the portion of the Merger Consideration payable or deliverable pursuant to Section 2.04 in respect of each share of Company Stock represented thereby, without any interest thereon.
(c) At the Closing, Parent, Purchaser or Merger Sub shall deliver or cause to be delivered (i) certificates representing Shares (by wire transfer of immediately available funds to the “Certificates”) or (ii) uncertificated Shares (Payments Administrator, for the “Uncertificated Shares”). At benefit of the Effective TimeEquityholders entitled thereto, Parent shall provide an amount in cash equal to the Exchange Agent funds representing Aggregate Series A Liquidation Preference, the Aggregate Series B Liquidation Preference and the aggregate Merger Per Share Closing Cash Consideration to be paid to the Equityholders in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (in accordance with Section 2.04 and the “Exchange Fund”). The Exchange Agent shall cause Allocation Schedule, as reduced by the Exchange Fund to be (i) held for the benefit Market Price of the holders of Shares aggregate Closing Stock Consideration as provided in Section 2.04(f) and (ii) promptly applied to making each Equityholder listed on Schedule II the payments provided for in Section 3.02(anumber of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II (as modified pursuant to the terms of this Agreement). 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.
(ad) Promptly after the Effective Time, 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 Upon (i) surrender to the Exchange Agent Payments Administrator of a certificate representing shares of Company Stock (“Certificate”), together with a properly completed letter and duly executed Letter of transmittal, Transmittal or (ii) receipt of an “agent’s message” by the Exchange Agent (or Payments Administrator of such other evidence, if any, evidence of transfer as the Exchange Agent Payments Administrator may reasonably request) require in the case of a book-entry transfer of uncertificated shares of Company Stock (“Uncertificated Shares”), an Equityholder whose shares of Company Stock have been converted into the right to receive the applicable portion of the Merger Consideration shall be entitled (A) to promptly receive from the Payments Administrator the Per Share Series A Liquidation Preference, if any, the Per Share Series B Liquidation Preference, if any, and the Per Share Closing Cash Consideration, if any, payable for each such share of Company Stock represented by such Certificate or for each such Uncertificated Share pursuant to Section 2.04, as reduced by the Market Price of such Equityholder’s Closing Stock Consideration as provided in Section 2.04(f), (B) to promptly receive from the Payments Administrator such Equityholder’s Closing Stock Consideration, if any, and (C) to receive from the Payments Administrator the remainder of the Merger Consideration payable or deliverable, as applicable, for each Share represented by a Certificate such share in the manner and at (or promptly following) the times paid or delivered to the Payments Administrator, for each Uncertificated Sharethe 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 Dissenting Shares) shall represent after the Effective Time for all purposes only the right to receive the applicable portion of the Merger ConsiderationConsideration and the Certificate or Uncertificated Share shall be canceled and cease to exist.
(be) 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 Purchaser 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 Purchaser that such Tax has been paid or is not payable.
(cf) After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Purchaser, the Surviving Corporation or the Payments Administrator, they shall be canceled and exchanged for the Merger Consideration in accordance with this Agreement, including the procedures set forth in this Article 2.
(g) After the Effective Time and pending surrender and exchange of any Person’s Certificate(s) or Uncertificated Shares, a holder’s Certificate(s) or Uncertificated Shares shall be deemed for all purposes to evidence only such holder’s right to receive from the Payments Administrator the portion of the Merger Consideration into which such Company Shares shall have been converted by the Merger, and each holder of a Certificate or Uncertificated Share shall look only to the Payments Administrator for payment or delivery of the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement, in each case, in respect of such Company Shares, and may surrender such Certificate or transfer such Uncertificated Share to the Payments Administrator and (subject to applicable abandoned property, escheat and similar Applicable Laws) receive in exchange therefor the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement.
(h) Except as required by Applicable Law, no dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date after the Effective Time shall be paid to any Equityholder (whether surrendered or unsurrendered).
(i) All consideration paid in respect of the surrender or exchange of shares of Company Stock in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCorporation for any reason, they shall be canceled and exchanged submitted to the Payments Administrator for the Merger Consideration exchange as provided for, and in accordance with the procedures set forth, in this Article 3Section 2.06.
(dj) Any portion of the Merger Consideration made available Notwithstanding anything to the Exchange Agent contrary, except as expressly provided in Section 10.02(b) (but subject to the limitations set forth in Article 10), in no event shall the aggregate amount required to be paid by Parent and Purchaser pursuant to this Agreement (including pursuant to Section 3.03(a2.04, Section 2.06, Section 2.07, Section 2.08, Section 2.11 and Section 2.14) exceed (and any interest or other income earned thereoni) that remains unclaimed by the holders of Shares one year after Base Cash Consideration, plus (ii) the Effective Time shall Final Adjustment Amount (which may 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when such amounts would otherwise escheat to or become property of any Governmental Authority shall become, negative number) plus (iii) to the extent permitted by Applicable Lawpayable, the property of Parent, free and clear of any claims or interest of any Person previously entitled theretoEarn-Out Amounts.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Communications Sales & Leasing, Inc.)
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”) or and (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At Prior to, or substantially concurrently with, the Effective Time, Parent shall provide make available (A) to the Exchange Agent funds representing Agent, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(aSection 2.02(a) and (B) to the “Exchange Fund”)Company, cash in U.S. dollars sufficient to pay the aggregate amount in accordance with Section 2.05 for all Company Equity Awards and Company Cash Incentive Awards. The Such funds held by the Exchange Agent shall cause may be invested by the Exchange Fund Agent as directed by P▇▇▇▇▇; provided that (x) no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any losses Parent shall promptly provide additional funds to be (i) held the Exchange Agent for the benefit of the holders stockholders of Shares the Company in the amount of any such losses and (iiy) promptly applied to making the payments provided for such investments shall only be 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 the full faith and credit America with maturities of no more than 30 days or guaranteed by the United States of America is pledged to provide for the payment of all principal and America. Any interest, gain or as otherwise directed by Parent. Any interest and other income resulting from produced by such investments shall will be kept in payable to the Exchange FundSurviving Corporation or Parent, as Parent directs. 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.
(a) Promptly after the Effective TimeTime (but no later than two (2) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares shares of Company Stock represented by Certificates 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 and, in the case of Uncertificated Shares, instructions in customary form for use in such exchange. .
(b) Each holder of Shares shares of Company Stock 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 transmittaltransmittal in customary form, 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 Merger Consideration payable for each Share in respect of the Company Stock 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 such Merger Consideration.
(bc) 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 satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cd) 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, in this Article 3Article 2.
(de) 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 thereonSection 2.03(a) that remains unclaimed by the holders of Shares one year shares of Company Stock twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the Merger Consideration in accordance with this Section 3.03 Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares shares of Company Stock without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsApplicable Laws. Any amounts remaining unclaimed by holders of Shares If any Certificate or Uncertificated Share shall not have been surrendered immediately prior to the time when date on which any cash in respect of such amounts Certificate or Uncertificated Share would otherwise escheat to or become the property of any Governmental Authority shall becomeAuthority, any such cash in respect of such Certificates or Uncertificated Shares shall, to the extent permitted by Applicable Law, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (AssetMark Financial Holdings, Inc.)
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger (the “"Exchange Agent”") for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “"Certificates”") or (ii) uncertificated Shares (the “"Uncertificated Shares”"). At the Effective 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”"). 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 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.
(ab) Promptly after the Effective Time, 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 '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 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.
(bc) 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.
(cd) 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.
(de) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(ef) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an agent (the "EXCHANGE AGENT") reasonably acceptable satisfactory to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Stock (the “Certificates”"CERTIFICATES") or (ii) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”"UNCERTIFICATED SHARES"). Immediately prior to the Effective Time, the Company shall deposit $18 million in cash (the "COMPANY CASH DEPOSIT") with the Exchange Agent. The Company Cash Deposit shall be made solely out of Freely Available Cash 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. At or immediately following the Effective Time, Parent shall provide make available to 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held cash, for the benefit of the holders of Shares Certificates and (ii) promptly applied to making the payments 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 FundUncertificated Shares, in direct obligations an amount sufficient to pay all remaining aggregate Merger Consideration in excess 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 ParentCompany Cash Deposit. 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.
(a) Promptly after the Effective Time (but, subject to receipt by the Exchange Agent of the necessary stockholder records from the Company's transfer agent, in no event more than ten (10) Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares 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. The parties hereby acknowledge and agree that the ten (10)-Business Day period set forth in the previous sentence will be tolled for each Business Day the Exchange Agent has not received the necessary stockholder records from the Company's transfer agent.
(b) Each holder of Shares shares of Company Stock 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 '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, together with a properly completed letter of transmittal, the Merger Consideration payable for each Share in respect of the Company Stock 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 such Merger Consideration.
(bc) 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 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 tax has been paid or is not payable.
(cd) 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 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto2.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a2.03(a) that remains unclaimed by the holders of shares of Company Stock nine (9) months after the Effective Time shall be returned to the Surviving Corporation, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Considerations in respect of such shares without any interest thereon. Notwithstanding the foregoing, neither Parent, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) to pay for Shares shares of Company Stock for which appraisal rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, the Surviving Corporation upon demand.
Appears in 1 contract
Sources: Merger Agreement (Printronix Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank American Stock Transfer and Trust Company as the exchange agent (or trust company or similar entity reasonably acceptable such other nationally recognized exchange agent agreed to between the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger 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 exchanging for the Per Share Merger Consideration Consideration, shares of Company Common Stock (i) represented by certificates representing Shares (the “Certificates”) or (ii) that are uncertificated Shares and represented by book entry (the “Uncertificated Book-Entry Shares”). At or prior to the Effective Time, Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds representing the aggregate Per Share Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Payment Fund”). 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 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 fund diminishes for other reasons any reason below the level required to make prompt payments payment of the aggregate Per Share Merger Consideration as contemplated herebyConsideration, Parent and the Surviving Corporation shall promptly replace or restore restore, or cause to be replaced or restored, the lost portion of the Exchange Fund lost through investments or other events such fund so as to ensure that the Exchange Fund 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 ▇▇▇▇▇▇; 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 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 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 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 purpose other than to make prompt payment of the applicable Per Share Merger Consideration to each holder of shares of Company Common Stock who shall become entitled to receive such funds pursuant to this Agreement. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration in respect of such shares.
(ab) Promptly after the Effective Time, and in any event no later than three Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares shares of Company Common Stock holding Certificates 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 instructions, each in forms reasonably satisfactory to the Company and Parent (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). Each holder of Shares shares of Company Common Stock represented by a Certificate that have been converted into the right to receive the 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 transmittal, or (ii) receipt of an “agent’s message” in a form reasonably satisfactory to the Company and Parent, 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 Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated ShareAgent. 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 Per Share Merger Consideration. Promptly after the Effective Time, Parent and the Surviving Corporation shall cause the Exchange Agent to issue and send to each holder of Book-Entry Shares, other than with respect to Excluded Shares and Dissenting Shares a check or wire transfer for the amount of cash equal to such holder’s Per Share Merger Consideration, without such holder being required to deliver a Certificate, an executed letter of transmittal or any “agents message” to the Exchange Agent, and such Book-Entry Shares shall then be automatically cancelled. No interest shall be paid or accrued on the Per Share Merger Consideration.
(bc) If any portion of the 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 cancelled Book-Entry Share, as applicable, 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 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 Tax 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 Tax has been paid or is not payable.
(cd) After All Per Share Merger Consideration paid upon the surrender of Certificates or cancellation of Book-Entry Shares, as applicable, 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 Share and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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) Payment Fund that remains unclaimed by the holders of Shares one year shares of Company Common Stock 12 months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Per Share 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 lawsConsideration. Any amounts remaining unclaimed by such holders of Shares immediately prior to the at such time when 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 ParentParent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective TimeClosing, 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”). The Exchange Agent Buyer 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 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 issuance of the Merger Consideration as contemplated hereby, Parent shall promptly replace or restore to the portion Sellers upon proper delivery of the Exchange Fund lost through investments or other events so as to ensure outstanding Crown Stock. Buyer and Sellers contemplate that the Exchange Fund is, exchange of Merger Consideration for certificates of Crown Stock will occur at all times, maintained at a level sufficient to make such paymentsthe Closing.
(ab) Promptly Upon surrender to the Buyer of a certificate or certificates representing shares of the Network Common Stock or the Mobile Common Stock, the Crowns will be entitled to receive the Merger Consideration payable in respect of such shares and any dividends payable pursuant to Section 2.3(d). Until so surrendered, each such certificate shall, after the Effective Time, 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, 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 Network Merger Consideration or the Mobile Merger Consideration.
(b) If , as applicable, and any portion of the Merger Consideration is dividends payable pursuant 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 payableSection 2.3(d).
(c) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Crown Stock. If, after the Effective Time, Certificates or Uncertificated Shares certificates representing such shares are presented to the Network Surviving Corporation or Mobile Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(d) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest No dividends or other income earned thereon) that remains unclaimed by distributions with respect to Castle B Common Stock issued in the Mergers shall be paid to the holders of Shares one year any unsurrendered certificates representing shares of Crown Stock until such certificates are surrendered as provided in this Section 2.3. Subject to the effect of applicable laws, following the surrender of such certificates, there shall be paid, without interest, to the record holder of the Castle B Common Stock issued in exchange therefor at the time of such surrender, the amount of dividends or distributions with a record date after the Effective Time shall be returned Date payable with respect 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 whole shares of Castle B Common Stock prior to that time shall thereafter look only to Parent for payment of or on the Merger Consideration in respect date of such Shares without any interest thereon. Notwithstanding surrender and not previously paid, less 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretowithholding taxes which may be required thereon.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Asset Purchase and Merger Agreement (Crown Castle International Corp)
Surrender and Payment. (a) Prior Parent shall authorize one or more transfer agent(s) reasonably acceptable to Target to act as Exchange Agent hereunder (the “Exchange Agent”) with respect to the Merger. At or prior to the Effective 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective Time, Parent shall provide deposit with the Exchange Agent funds for the benefit of the holders of Target Common Shares, for exchange in accordance with this Section 3.2 through the Exchange Agent, certificates representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Parent Common Shares issuable pursuant to Section 3.02(a) 3.1 in exchange for outstanding Target Common Shares plus accrued and unpaid dividends with respect thereto (such Parent Common Shares, together with any dividends or distributions with respect thereto and cash in lieu of fractional Parent Common Shares, being hereinafter referred to as the “Exchange Fund”). The Exchange Agent shall cause shall, pursuant to irrevocable instructions, deliver the Merger Consideration in exchange for surrendered Stock Certificates pursuant to Section 3.1 out of the Exchange Fund to be (i) held for Fund. Except as contemplated by Section 3.2(d), the benefit of the holders of Shares and (ii) promptly applied to making the payments 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 paymentspurpose.
(ab) Promptly but in any event within 5 business days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, send to each holder of Shares at the Effective Time record of Stock 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 which shall be in a form reasonably acceptable to Target), and instructions for use in such exchangeeffecting the surrender of Stock Certificates for payment therefor in accordance herewith (together, the “Exchange Instructions”). 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 The Exchange Agent shall also provide for holders 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) Stock Certificates to procure in the case of a book-entry transfer of Uncertificated Shares, 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 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 Stock Certificates in exchange for all purposes only the right to receive the Merger Consideration.
(bc) If any portion of the Merger Consideration is to be issued or 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 Target Common Shares represented by the Stock Certificate(s) surrendered in exchange therefor, no such Certificate issuance or Uncertificated Share payment shall be made unless (i) the Stock Certificate(s) so surrendered have been properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such issuance has paid to the Exchange Agent any transfer or other taxes required as a result of such issuance to a Person other than the registered holder or establish to the Exchange Agent’s satisfaction of the Exchange Agent that such Tax tax has been paid or is not payableapplicable. For 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 “GovernmentalAuthority”).
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Plains Exploration & Production Co)
Surrender and Payment. (a) Prior to the Effective Time, Parent the Company shall appoint designate a nationally recognized commercial bank or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers Parent to act as Exchange Agent in the Merger agent (the “Exchange Agent”) for the purpose benefit of exchanging for the Merger Consideration (i) certificates representing holders of Shares (the “Certificates”) or (ii) uncertificated who exchange their Shares (the “Uncertificated Shares”)in accordance with this Section 2.03. At Prior to the Effective Time, Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds Agent, for the benefit of the holders of Shares, for exchange in accordance with this Section 2.03 promptly after the Effective Time, book-entry shares representing the aggregate Merger Consideration issuable to be paid in respect holders of Shares as of the Certificates and the Uncertificated Shares Effective Time pursuant to Section 3.02(a2.02(a) (such book-entry shares of Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 2.03(c) and other amounts payable in accordance with Section 2.03(e), the “Exchange Fund”). The Exchange Agent shall cause shall, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion of the Exchange Fund to shall be invested by the Exchange Agent as directed by Parent; provided that (i) held for no such investment of or losses thereon shall relieve Parent from making the benefit payments required by this Section 2.03 or elsewhere in this Agreement, or affect the amount payable in respect of the holders Shares, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of Shares and any such losses, and
(ii) promptly applied no such investment shall have maturities that could prevent or delay payments to making the payments provided for in Section 3.02(a)be made pursuant to this Agreement. Any interest or other income from such investments shall be paid to and become income of Parent. The Exchange Fund shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included other than as specified 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 paymentsthis Section 2.03(a).
(ab) Promptly As promptly as practicable after the Effective Time, Parent shall send, or shall cause the Exchange Agent to senddistribute the shares of Parent Common Stock into which the Shares have been converted pursuant to the Merger, to each holder which, in the case of Shares at distributed in the Effective Time a letter of transmittal and instructions (which shall specify that the delivery Distribution, shall be effected, distributed on the same basis as Shares were distributed in the Distribution 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 Persons who received Shares in such exchangethe Distribution. Each holder of Shares shall be entitled to receive in respect of the Shares 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 Merger Consideration pursuant to this Section 2.03(b) (and cash in lieu of fractional shares of Parent Common Stock, as contemplated by Section 2.03(e), and any dividends or distributions and other amounts pursuant to Section 2.03(c)). The Exchange Agent shall not be entitled to receivevote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder, upon except as contemplated by Section 2.03(c).
(ic) surrender Subject to the Exchange Agent following sentence, no dividends or other distributions declared after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” Parent Common Stock that are not able to be distributed by the Exchange Agent promptly after the Effective Time, whether due to a legal impediment to such distribution or otherwise. Subject to the effect of abandoned property, escheat, Tax or other Applicable Laws, following the distribution of any such previously undistributed shares of Parent Common Stock, there shall be paid to the record holder of such shares of Parent Common Stock, without interest, (or such other evidencei) at the time of the distribution, if any, the amount of transfer as the Exchange Agent may reasonably request) cash payable in the case lieu of a book-entry transfer fractional share of Uncertificated SharesParent Common Stock to which such holder is entitled pursuant to Section 2.03(e) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock; and (ii) at the appropriate payment date, the Merger Consideration payable for each Share represented by amount of dividends or other distributions with a Certificate record date after the Effective Time but prior to the distribution of such whole shares of Parent Common Stock and a payment date subsequent to the distribution of such whole shares of Parent Common Stock.
(d) All shares of Parent Common Stock issued upon the exchange of SpinCo Common Stock in accordance with the terms of this Section 2.03 (including any cash paid pursuant to Section 2.03(c) or for each Uncertificated Share. Until so surrendered Section 2.03(e)) shall be deemed to have been issued or transferredpaid, as the case may be, each in full satisfaction of all rights pertaining to such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger Considerationshares of SpinCo Common Stock.
(be) If No certificates or scrip representing fractional shares of Parent Common Stock or book-entry credit of the same shall be issued on conversion of SpinCo Common Stock, and such fractional share interests will not entitle the owner thereof to vote, or to any portion other rights of a stockholder of Parent. All fractional shares of Parent Common Stock that a holder of shares of SpinCo Common Stock would otherwise be entitled to receive as a result of the Merger Consideration is shall be aggregated by the Exchange Agent. The Exchange Agent shall cause the whole shares obtained thereby to be paid sold on behalf of such holders of shares of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger, in the open market or otherwise, in each case at then-prevailing market prices, and in no case later than five Business Days after the time of the Distribution. The Exchange Agent shall make available the net proceeds thereof, subject to the deduction of the amount of any withholding Taxes as contemplated in Section 2.03(i) and brokerage charges, commissions and conveyance and similar Taxes, on a Person pro rata basis, without interest, as soon as practicable to the holders of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger.
(f) The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or SpinCo Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock or SpinCo Common Stock (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 issuance of stock by SpinCo in connection with the Separation or shall otherwise be in proper form for transfer or, in other transactions contemplated by this Agreement or the case of Uncertificated Shares, that such documentation as may be reasonably requested by the Exchange Agent is provided Separation Agreement and (ii) any extraordinary cash dividends with respect to SpinCo Common Stock) with a record date occurring on or after the Person requesting such payment shall pay date hereof and prior to the Exchange Agent Effective Time; provided that nothing in this Section 2.03(f) shall be construed to permit SpinCo, Parent or Merger Sub to take any transfer or other Taxes required as a result action with respect to its securities that otherwise is prohibited by the terms 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 payablethis Agreement.
(c) 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.
(dg) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) Fund (and including proceeds of any interest or other income earned thereoninvestment thereof) that remains unclaimed by undistributed to the former holders of Shares one year on the date that is twelve months after the Effective Time shall be returned delivered to Parent, upon demand, and any such holder former holders of Shares who has have not exchanged such Shares for the Merger Consideration theretofore received shares of Parent Common Stock in accordance with this Section 3.03 prior to that time 2.03 shall thereafter look only to Parent for payment of the Merger Consideration to which they are entitled pursuant to Section 2.02(a), any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 2.03(e) and any dividends or other distributions with respect to the Parent Common Stock to which they are entitled pursuant to Section 2.03(c) (subject to any abandoned property, escheat or similar Applicable Law).
(h) None of such Shares without any interest thereon. Notwithstanding Parent, the foregoingCompany, Parent SpinCo, Merger Sub, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Shares Person for any amount paid Merger Consideration from the Exchange Fund (or dividends or distributions with respect to Parent Common Stock) or other cash delivered to a public official pursuant to applicable any abandoned property, escheat or similar lawsApplicable Law. Any amounts portion of the Exchange Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to the such time when as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeshall, to the extent permitted by Applicable Law, become the property of Parent, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(ei) Any portion Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation, Parent and Merger Consideration made available Sub shall be entitled to deduct and withhold from the amounts otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of Tax law. If the Exchange Agent pursuant Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to Section 3.03(a) to pay for Shares for which rights to receive payment the holder of the fair value shares of SpinCo Common Stock in respect of which the Exchange Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, made such Shares have been perfected deduction and withholding.
(j) From and after the Effective Time, the stock transfer books of SpinCo shall be returned to Parentclosed, upon demandand there shall be no further registration of transfers of Shares thereafter on the records of SpinCo.
Appears in 1 contract
Sources: Merger Agreement (Transportation Systems Holdings Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank Computershare Trust Company, N.A. as the exchange agent (or trust company or similar entity reasonably acceptable such other nationally recognized exchange agent agreed to between the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger parties hereto) (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Common Stock (the “Certificates”) or (ii) uncertificated Shares (); provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the “Uncertificated Shares”)ownership of shares of Company Common Stock. At or prior to the Effective Time, and except with respect to per share Merger Consideration payable pursuant to Company Restricted Stock Awards (which are governed by Section 2.06(b)), Parent shall provide deposit, or shall cause to be deposited, with the Exchange Agent funds representing the aggregate per share Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Payment Fund”). 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 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 fund diminishes for other reasons any reason below the level required to make prompt payments payment of the Merger Consideration as contemplated herebyConsideration, Parent shall promptly replace or restore restore, or cause to be replaced or restored, the lost portion of the Exchange Fund lost through investments or other events such fund so as to ensure that the Exchange Fund 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 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 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, as directed by Parent. 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, in connection with the exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares of Company Common Stock.
(ab) Promptly after the Effective Time, and in any event no later than three Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares 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) (other than shares of Company Common Stock subject to Company Restricted Stock Awards) 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 2.08) to the Exchange Agent) for use in such exchange. Each holder of Shares shares of Company Common Stock that have been converted into the right to receive the Merger Consideration (other than shares of Company Common Stock subject to Company Restricted Stock Awards) shall be entitled to receive, receive 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 Sharesshares of Company Common Stock, and, in each case, delivery to the Merger Consideration payable for each Share represented Exchange Agent of such other documents as may reasonably be requested by a Certificate or for each Uncertificated Sharethe 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 the such Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(bc) 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 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 Tax has been paid or is not payable.
(cd) 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 Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. 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 as provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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) Payment Fund that remains unclaimed by the holders of Shares one year shares of Company Common Stock 12 months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration in respect of such Shares Consideration, 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 lawsinterest. Any amounts remaining unclaimed by such holders of Shares immediately prior to the at such time when 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 ParentParent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective 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 Exchange Agent in the Merger disbursing agent (the “Exchange "Disbursing Agent”") for the purpose payment of exchanging for the Merger Consideration (i) upon surrender of certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (Shares. Parent will enter into a disbursing agent agreement with the “Uncertificated Shares”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). At the Effective Time, Parent shall provide the Exchange Agent funds representing the aggregate Merger Consideration deposit or cause to be paid deposited with the Disbursing Agent cash in respect of an aggregate amount necessary to make the Certificates and the Uncertificated Shares payments pursuant to Section 3.02(a3.06(b) to holders of Shares (such amounts being hereinafter referred to as the “"Exchange Fund”"). The Exchange Disbursing Agent shall cause invest the Exchange Fund to as directed by Parent; provided that such investments shall be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments 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, (ii) 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 (iii) commercial paper rated the highest quality by Parenteither ▇▇▇▇▇'▇ 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 investments investment shall be kept in become a part of 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 and any amounts in excess of the Merger Consideration as contemplated hereby, Parent amounts payable under Section 3.06(b) shall be promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as paid to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsParent.
(ab) Promptly Merger Subsidiary shall instruct the Disbursing Agent to mail promptly after the Effective Time, Parent shall send, or shall cause but in no event later than the Exchange Agent to sendfifth Business Day thereafter, to each person who was a record holder as of Shares 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 3.06(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 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 effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation, together with such exchange. Each letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of Shares that have been converted into the right to receive the Merger Consideration such Certificate 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) receive in the case of a book-entry transfer of Uncertificated Shares, exchange therefor the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Share. Until so surrendered or transferredin respect of that Certificate, as the case may beless any required withholding of Taxes, 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 surrender of the Merger ConsiderationCertificates.
(bc) If any portion of the 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, in and that the case of Uncertificated Shares, that such documentation as may be reasonably requested by the Exchange Agent is provided and (ii) the Person 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 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 Tax tax has been paid or is not payableapplicable.
(cd) 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 SharesShares 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 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 Surviving CorporationCorporation for any reason, they such Certificates shall be canceled and exchanged for represent the right to receive the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 3III. At the close of business on the day of the Effective Time the stock ledger of the Company shall be closed.
(df) Any portion of the Merger Consideration made available to the Exchange Disbursing Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of pay for Shares one year after the Effective Time for which appraisal rights have been perfected shall be returned to Parent, Parent upon demand. At any time more than twelve months after the Effective Time, the Disbursing Agent shall upon demand of Parent deliver to it any funds which had been made available to the Disbursing Agent and any not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time funds). Thereafter, holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingthis Agreement, 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 and other similar lawsLaws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed by holders of Shares immediately prior to the such time when such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental unit or agency, shall, to the extent permitted by Applicable applicable Law, become the property of Parentthe Surviving Corporation, free and clear of any all claims or interest of any Person person previously entitled thereto.
(e) Any portion . 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 made available delivered in respect of such Certificate of Shares to the Exchange Agent a public official pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parentany abandoned property, upon demandescheat or other similar Law.
Appears in 1 contract
Sources: Merger Agreement (Wiser Oil Co)
Surrender and Payment. (a) 1.4.1. Prior to the Effective Time, Parent Vodafone shall appoint a bank or trust company or similar entity ChaseMellon Shareholder Services, L.L.C. or, failing ChaseMellon Shareholder Services, L.L.C., another agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act AirTouch as Exchange Agent in the Merger exchange agent (the “Exchange Agent”"EXCHANGE AGENT") for the purpose of exchanging Certificates for the Merger Consideration (i) certificates representing Vodafone Depositary Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At the Effective 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”)Cash Consideration. 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 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.
(a) Promptly after the Effective Time, Parent shall the Surviving Corporation will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record as of the Effective Time of AirTouch Common Shares (other than holders of Excluded AirTouch Shares and Dissenting Shares), a letter of transmittal transmittal, in such form as AirTouch and instructions (which shall specify that the delivery shall be effectedVodafone 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 AirTouch Common Shares to the Exchange Agent. AirTouch shall act as agent for each holder of record as of the Effective Time of AirTouch Common Shares (other than Excluded AirTouch Shares and Dissenting Shares) (each, a "RECORD HOLDER") and shall enter into an agreement (the "NOMINEE AGREEMENT") with Vodafone and Boston EquiServe Limited Partnership. Vodafone shall issue the Vodafone Ordinary Shares referred to in Section 1.3.4. in registered form to Boston EquiServe Limited Partnership or its nominee (the "NOMINEE"), as nominee and agent for use and on behalf of the Record Holders for the issuance of Vodafone Depositary Shares in accordance with this Article I, subject to the terms and conditions of this Agreement and the Nominee Agreement. If the Redenomination shall take effect immediately prior to the Effective Time, then, unless the directors of Vodafone shall determine not to issue Bearer Shares (as defined below), the Nominee shall, as agent for the Record Holders, instruct Vodafone to, and Vodafone shall, strike the name of the Nominee from the Vodafone Shareholders' register, create share warrants to bearer ("BEARER SHARES") in respect of such Vodafone Ordinary Shares and deliver the Bearer Shares to the Nominee, as agent as aforesaid. Regardless of whether the Redenomination takes effect and the Bearer Shares are delivered to the Nominee, the Vodafone Ordinary Shares in registered form or the Bearer Shares, as the case may be, held by the Nominee shall be deposited by the Nominee or on its behalf with the Depositary (or as it may direct) as and when required for the issuance of Vodafone Depositary Shares in accordance with this Article I. To the extent required, the Exchange Agent will requisition from the Depositary, from time to time, such number of Vodafone Depositary Shares, in such exchangedenominations as the Exchange Agent shall specify, as are issuable in respect of AirTouch Common Shares properly delivered to the Exchange Agent. Vodafone shall from time to time deposit or cause to be deposited cash in an amount sufficient to provide the Exchange Agent with the cash to fund the payments to be paid by Vodafone required by Section 1.4.2. 6
1.4.2. Each holder of any AirTouch Common Shares that have been converted into the a right to receive the Merger Consideration shall be entitled to receiveconsideration set forth in Section 1.3.2. shall, 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 transmittal covering 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 Merger Consideration payable for each Share AirTouch Common Shares 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 Certificates, without further action, be entitled to receive the Merger Consideration.
(b) 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 the number of whole Vodafone Depositary Shares included 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.
(c) 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.
(d) 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 one year 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 AirTouch Common Shares, and (ii) a check in the foregoing, Parent shall not be liable amount (after giving effect to any required tax withholdings) of (A) the Cash Consideration that such holder of Shares for any amount paid has the right to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent receive pursuant to Section 3.03(a1.3.2., plus (B) any cash in lieu of fractional shares to pay for Shares for which rights be paid pursuant to Section 1.6., plus (C) any cash dividends or other distributions that such holder has the right to receive payment of the fair value of such Shares have been perfected shall be returned pursuant to Parent, upon demandSection 1.4.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent Merger Sub 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 Exchange Agent in the Merger agent (the “Exchange Agent”) a commercial bank or trust company, reasonably acceptable to the Company, for the purpose of 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”)are entitled to receive pursuant to this Article 1. At Immediately prior to the Effective Time, Parent Merger Sub shall provide deposit in trust with the Exchange Agent Agent, cash or immediately available funds representing in an aggregate amount equal to the aggregate product of: (i) the total 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); multiplied by (ii) the Merger Consideration (such amount being hereinafter referred to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (as the “Exchange 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 Shares) in Permitted Investments, and (ii) promptly applied any net earnings with respect thereto shall be paid to making the payments provided for in Section 3.02(a)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 Payment Fund. The Payment Fund shall not be used for any other purpose that is not except as 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.
(a) Promptly after the Effective Time, Parent shall Merger Sub will send, or shall will cause the Exchange Agent to send, to each holder of record of Shares at which immediately prior to the Effective Time were outstanding, other than holders of 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 Shares to the Exchange Agent); and (ii) instructions for use in such exchangeeffecting the surrender of Shares for payment therefor (the “Exchange Instructions”). If for any reason (including losses), the Payment Fund is inadequate to pay the amounts to which the holders of record of Shares which, immediately prior to the Effective Time were outstanding (other than holders of Shares canceled and retired pursuant to Section 1.2(b) hereof), Parent shall take all actions necessary to cause the Surviving Corporation promptly to deposit in trust with the Exchange Agent, additional cash sufficient to make all payments required to be made to the holders of Shares which immediately prior to the Effective Time were outstanding (other than holders of Shares canceled and retired pursuant to Section 1.2(b) hereof) and Parent and the Surviving Corporation shall, in any event, be liable for payment thereof.
(b) Each holder of Shares that have been converted into the a right to receive the Merger Consideration shall be which holders of such Shares are entitled to receivereceive pursuant to this Article 1, upon (i) surrender to the Exchange Agent of a Certificatethe Shares, together with a properly completed and executed letter of transmittal, or (ii) receipt of an “agent’s message” transmittal covering such Shares and any other documents reasonably required by the Exchange Agent (or such other evidenceInstructions, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, 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 1, without any interest thereon, less any required withholding of Taxes, and the certificates so surrendered shall immediately be canceled. Until so surrendered or transferred, as the case may besurrendered, each such Certificate or Uncertificated Share shall represent shall, at and after the Effective Time Time, represent for all purposes only the right to receive such Merger Consideration 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 such certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration.
(bd) If any portion of the Merger Consideration is to be paid to a Person other than the Person registered holder of the Shares 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 Shares 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 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 has been paid or is not payable. The Exchange Agent may make any Tax withholdings required by law if not provided with the appropriate documents. 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.
(ce) After the Effective TimeTime the stock transfer books of the Company shall be closed and, thereafter, 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 31.
(df) Any portion of the Payment Fund that remains unclaimed by the holders of Shares 180 days after the Effective Time (including, without limitation, all interest and other income received by the Exchange Agent in respect of all funds made available to it) shall be returned to the Surviving Corporation, upon demand, and any such holder of Shares who has not exchanged his or her Shares for the Merger Consideration in accordance with this Section 1.3 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration in respect of Shares (subject to abandoned property, escheat and other similar laws) as general creditors thereof. If any Shares shall not have been surrendered prior to two years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such Merger Consideration 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, the Surviving Corporation shall not be liable to any holder of Shares for an amount paid to a public official pursuant to applicable abandoned property, escheat or other similar laws.
(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) that remains unclaimed by the holders of Shares one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a1.3(a) to pay for Shares for which dissenters’ rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parentthe Surviving Corporation, upon demanddemand made no earlier than 180 days after the Effective Time.
(h) All cash paid upon the surrender for exchange of certificates formerly representing Shares in accordance with the terms of this Article 1 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares exchanged for cash theretofore represented by such certificates.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint (subject to the Company's prior approval not to be unreasonably withheld or delayed) a commercial 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 Exchange Agent in the Merger (the “"Exchange Agent”") for the purpose of exchanging Certificates or Uncertificated Company Shares for the Merger Consideration (i) certificates representing Shares (or the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)consideration described in Section 3.05, as applicable. At As of the Effective Time, Parent shall provide deposit with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held Agent, for the benefit of the holders of Company Shares (other than Company Excluded Shares), for exchange in accordance with this Section through the Exchange Agent, securities representing shares of Parent Common Stock issuable and payable pursuant to Section 3.01 or Section 3.05, as applicable, in exchange for outstanding Company Shares (other than Company Excluded Shares) in respect of the Stock Consideration to be paid in the Merger or the consideration described in Section 3.05, as applicable, the cash necessary to pay for the aggregate Cash Consideration to be paid pursuant to this Article 3 and, after the Effective Time, if applicable, any cash and dividends or other distribution with respect to the Parent Common Stock to be issued or to be paid pursuant to this Article 3 (together, the "Exchange Fund"). If a Dissenting Stockholder effectively withdraws its demand for, or loses its rights to, appraisal pursuant to Section 262 of the DGCL with respect to any Dissenting Shares, (i) such shares of Company Common Stock shall cease to be Company Excluded Shares and (ii) promptly applied Parent shall make available or cause to making be made available to the payments provided Exchange Agent (A)(1) additional funds in an amount equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Cash Consideration and (2) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Stock Consideration or (B) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the consideration described in Section 3.02(a)3.05, as applicable. 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.
(a) Promptly after the Effective TimeTime (and in any event within three business days), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Company 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 Company Shares to the Exchange Agent) for use in such exchange. .
(b) Each holder of Company Shares that have been converted into the right to receive the Merger Consideration or the consideration described in Section 3.05, as applicable, shall be entitled to receive, upon (i) surrender to delivery of 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 SharesOwnership Evidence, the Merger Consideration payable for each Share or the consideration described in Section 3.05, as applicable, in respect of the Company Shares represented by a Certificate or for each Uncertificated ShareCompany Share and any cash and dividends or other distributions with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Company Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration or the Merger Considerationconsideration described in Section 3.05, as applicable.
(bc) If any portion of the Merger Consideration or the consideration described in Section 3.05, as applicable, is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Company 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 Company 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 taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Company Share or establish to the satisfaction of the Exchange Agent that such Tax tax has been paid or is not payable.
(cd) 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 SharesCompany Shares thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Company Shares are presented to Parent, the Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled and exchanged for the Merger Consideration or the consideration described in Section 3.05, as applicable, and cash, dividends or other distributions to the extent provided for, and in accordance with the procedures set forth, in this Article 3.
(de) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon3.02(a) that remains unclaimed by the holders of Company Shares one year six months after the Effective Time shall be returned delivered to Parent or otherwise on the instruction of Parent, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.03 3.01 or the consideration described in Section 3.05, as applicable, prior to that time shall thereafter look only to Parent for payment of the Merger Consideration or the consideration described in Section 3.05, as applicable, and any cash, dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Company Shares for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Company Shares two years after the Effective Time (or such earlier date immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(ef) Any portion Whenever a dividend or other distribution is declared by Parent in respect of Parent Common Stock, the Merger Consideration made available record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions in respect of such Parent Common Stock shall be paid to any holder of any unsurrendered or undelivered Ownership Evidence until such Ownership Evidence is provided to the Exchange Agent or Parent in accordance with this Article 3. Subject to the effect of Applicable Laws, following surrender or delivery, as applicable, of any such Ownership Evidence to the Exchange Agent or Parent in accordance with this Article 3, there shall be issued and/or paid to the holder of the Ownership Evidence representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender or delivery, as the case may be, the dividends or other distributions with a record date at or after the Effective Time and a payment date on or prior to the date of issuance of such whole shares of Parent Common Stock and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of Parent Common Stock with a record date at or after the Effective Time on the Closing Date but with a payment date subsequent to surrender or delivery and not previously paid.
(g) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued in respect of any Company Shares and any holder of Company Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.02(g) shall be entitled to receive in lieu thereof an amount in cash (without interest) determined by multiplying such fraction (rounded to the nearest one-hundredth of a share) by the Closing Parent Common Stock Price (the aggregate amount of cash required to be paid in lieu of fractional shares of Parent Common Stock, the "Aggregate Fractional Share Consideration").
(h) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Applicable Law, including federal, state, local or foreign Tax law. If the Exchange Agent, Parent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which the Exchange Agent, Parent or the Surviving Corporation, as the case may be, made such deduction and withholding.
(i) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form customarily required by Parent as indemnity against any claim that may be made against it with respect to such Certificate, and the submission of such other documentation as Parent customarily requires for the replacement of lost, stolen or destroyed certificates, the Exchange Agent (or Parent pursuant to Section 3.03(a3.02(e)) to pay for Shares for which rights to receive payment of will deliver a certificate evidencing the fair value ownership of such Shares have been perfected shall be returned number of shares of Parent Common Stock and/or any cash, dividends and other distributions in respect thereof issuable and/or payable in exchange for such lost, stolen or destroyed Certificate pursuant to Parent, upon demandthis Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint (subject to the Company’s prior approval not to be unreasonably withheld or delayed) a commercial 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 Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging Certificates or Uncertificated Company Shares for the Merger Consideration (i) certificates representing Shares (or the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)consideration described in Section 3.05, as applicable. At As of the Effective Time, Parent shall provide deposit with the Exchange Agent funds Agent, for the benefit of the holders of Company Shares (other than Company Excluded Shares), for exchange in accordance with this Section through the Exchange Agent, securities representing shares of Parent Common Stock issuable and payable pursuant to Section 3.01 or Section 3.05, as applicable, in exchange for outstanding Company Shares (other than Company Excluded Shares) in respect of the aggregate Merger Stock Consideration to be paid in respect of the Certificates and Merger or the Uncertificated Shares consideration described in Section 3.05, as applicable, the cash necessary to pay for the aggregate Cash Consideration to be paid pursuant to Section 3.02(a) this Article 3 and, after the Effective Time, if applicable, any cash and dividends or other distribution with respect to the Parent Common Stock to be issued or to be paid pursuant to this Article 3 (together, the “Exchange Fund”). The Exchange Agent shall cause If a Dissenting Stockholder effectively withdraws its demand for, or loses its rights to, appraisal pursuant to Section 262 of the Exchange Fund DGCL with respect to be any Dissenting Shares, (i) held for the benefit such shares of the holders of Company Common Stock shall cease to be Company Excluded Shares and (ii) promptly applied Parent shall make available or cause to making be made available to the payments provided Exchange Agent (A)(1) additional funds in an amount equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Cash Consideration and (2) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the Stock Consideration or (B) additional shares of Parent Common Stock equal to the product of (x) the number of Dissenting Shares for which such Dissenting Stockholder has withdrawn its demand for, or lost its rights to, appraisal pursuant to Section 262 of the DGCL and (y) the consideration described in Section 3.02(a)3.05, as applicable. 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.
(a) Promptly after the Effective TimeTime (and in any event within three business days), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Company 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 Company Shares to the Exchange Agent) for use in such exchange. .
(b) Each holder of Company Shares that have been converted into the right to receive the Merger Consideration or the consideration described in Section 3.05, as applicable, shall be entitled to receive, upon (i) surrender to delivery of 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 SharesOwnership Evidence, the Merger Consideration payable for each Share or the consideration described in Section 3.05, as applicable, in respect of the Company Shares represented by a Certificate or for each Uncertificated ShareCompany Share and any cash and dividends or other distributions with respect to the Parent Common Stock to be issued or to be paid pursuant to the last sentence of Section 3.01(a). Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Company Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration or the Merger Considerationconsideration described in Section 3.05, as applicable.
(bc) If any portion of the Merger Consideration or the consideration described in Section 3.05, as applicable, is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Company 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 Company 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 taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Company Share or establish to the satisfaction of the Exchange Agent that such Tax tax has been paid or is not payable.
(cd) 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 SharesCompany Shares thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Company Shares are presented to Parent, the Surviving CorporationCorporation or the Exchange Agent for any reason, they shall be canceled and exchanged for the Merger Consideration or the consideration described in Section 3.05, as applicable, and cash, dividends or other distributions to the extent provided for, and in accordance with the procedures set forth, in this Article 3.
(de) Any portion of the Merger Consideration Exchange Fund made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon3.02(a) that remains unclaimed by the holders of Company Shares one year six months after the Effective Time shall be returned delivered to Parent or otherwise on the instruction of Parent, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.03 3.01 or the consideration described in Section 3.05, as applicable, prior to that time shall thereafter look only to Parent for payment of the Merger Consideration or the consideration described in Section 3.05, as applicable, and any cash, dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Company Shares for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Company Shares two years after the Effective Time (or such earlier date immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority 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.
(ef) Any portion Whenever a dividend or other distribution is declared by Parent in respect of Parent Common Stock, the Merger Consideration made available record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions in respect of such Parent Common Stock shall be paid to any holder of any unsurrendered or undelivered Ownership Evidence until such Ownership Evidence is provided to the Exchange Agent or Parent in accordance with this Article 3. Subject to the effect of Applicable Laws, following surrender or delivery, as applicable, of any such Ownership Evidence to the Exchange Agent or Parent in accordance with this Article 3, there shall be issued and/or paid to the holder of the Ownership Evidence representing whole shares of Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender or delivery, as the case may be, the dividends or other distributions with a record date at or after the Effective Time and a payment date on or prior to the date of issuance of such whole shares of Parent Common Stock and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of Parent Common Stock with a record date at or after the Effective Time on the Closing Date but with a payment date subsequent to surrender or delivery and not previously paid.
(g) Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued in respect of any Company Shares and any holder of Company Shares entitled to receive a fractional share of Parent Common Stock but for this Section 3.02(g) shall be entitled to receive in lieu thereof an amount in cash (without interest) determined by multiplying such fraction (rounded to the nearest one-hundredth of a share) by the Closing Parent Common Stock Price (the aggregate amount of cash required to be paid in lieu of fractional shares of Parent Common Stock, the “Aggregate Fractional Share Consideration”).
(h) Each of the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Applicable Law, including federal, state, local or foreign Tax law. If the Exchange Agent, Parent or the Surviving Corporation, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which the Exchange Agent, Parent or the Surviving Corporation, as the case may be, made such deduction and withholding.
(i) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form customarily required by Parent as indemnity against any claim that may be made against it with respect to such Certificate, and the submission of such other documentation as Parent customarily requires for the replacement of lost, stolen or destroyed certificates, the Exchange Agent (or Parent pursuant to Section 3.03(a3.02(e)) to pay for Shares for which rights to receive payment of will deliver a certificate evidencing the fair value ownership of such Shares have been perfected shall be returned number of shares of Parent Common Stock and/or any cash, dividends and other distributions in respect thereof issuable and/or payable in exchange for such lost, stolen or destroyed Certificate pursuant to Parent, upon demandthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Kbw, Inc.)
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Paying Agent”) for the purpose of exchanging for the Merger Consideration (iA) certificates representing Shares shares of Company Stock (the “Certificates”) or (iiB) uncertificated Shares shares of Company Stock (the “Uncertificated Shares”). At the Effective 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”). 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 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.
(a) Promptly after the Effective Time (but in no event later than two (2) Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Paying Agent to send, to each holder of Shares at Certificates that immediately prior to the Effective Time represented shares of Company Stock and whose shares were converted into the Merger Consideration pursuant to Section 2.02 a letter of transmittal (in a form that was reasonably acceptable to the Company prior to the Effective Time) 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. .
(b) Each holder of Shares Certificates that immediately prior to the Effective Time represented shares of Company Stock that have been converted into the right to receive the 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 the Merger Consideration. Payment of an “agent’s message” the Merger Consideration, in each case to which such holders are entitled pursuant to the terms of this Agreement with respect to Uncertificated Shares shall be made promptly following the Effective Time without any action on the part of the person in whose name such Uncertificated Shares are registered, except as may be required by the Exchange Paying Agent (including in respect of any applicable tax forms or other documentation required to be delivered by 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, holder). No interest shall be paid or accrued with respect to the Merger Consideration payable upon surrender of Certificates or Uncertificated Shares.
(c) At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, for each Share represented by a Certificate or for each Uncertificated Share. Until so surrendered or transferredthe benefit of the holders of Company Stock, an aggregate amount of cash comprising the amount sufficient to pay the aggregate Merger Consideration (such cash referred to as the case may be, each such Certificate or Uncertificated Share “Payment Fund”). The Payment Fund shall represent after not be used for any purpose other than for the Effective Time purpose provided for all purposes only in this Agreement and shall be held in trust for the right benefit of the holders of Company Stock entitled to receive the Merger Consideration pursuant to the terms of Section 2.02. The Payment Fund shall, pending its disbursement to the holders of Company Stock and subject to the applicable requirements of the Paying Agent, be invested by the Paying Agent as directed by Parent or, after the Effective Time, the Surviving Corporation in (i) short-term direct obligations of the United States of America, (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, (iii) short-term commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Company; provided that no such investment or losses shall affect the amounts payable to such holders of Company Stock and Parent shall promptly replace or cause to be replaced any funds deposited with the Paying Agent that are lost through any investment so as to ensure that the Payment Fund is at all times maintained at a level sufficient for the Paying Agent to pay the Merger Consideration. Earnings from investments, subject to the immediately preceding proviso, shall be paid to and shall be the sole and exclusive property of Parent and the Surviving Corporation. Except as contemplated by Section 2.03(g) hereof, the Payment Fund shall not be used for any other purpose.
(bd) 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 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 Tax has been paid or is not payable.
(ce) After At the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock and the holders of Certificates and Uncertificated Shares that evidenced shares of Company Stock prior to the Effective Time shall cease to have any rights with respect to such shares of Company Stock, other than the right to receive the Merger Consideration. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCorporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 32.
(df) Any portion of the Merger Consideration made available to deposited with the Exchange Paying Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon2.03(c) that remains unclaimed by the holders of Shares one year shares of Company Stock 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock 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 Consideration, in respect of such Shares shares without any interest thereon, as general creditors thereof. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock immediately prior to the such time when 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, Parent free and clear of any claims or interest of any Person previously entitled thereto.
(eg) Any portion of the Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.03(a) to pay for 2.04 in respect of any Appraisal Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank Computershare Trust Company, N.A. as the exchange agent (or trust company or similar entity reasonably acceptable such other nationally recognized exchange agent agreed to between the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger parties hereto) (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) for certificates representing Shares shares of Company Common Stock (the “Certificates”) ); 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 Company Common Stock. At or prior to the Effective Time and except with respect to the Merger Consideration payable pursuant to Company Restricted Stock Awards (ii) uncertificated Shares which are governed by Section 2.06(b)), Parent shall deposit, or shall cause to be deposited with the Exchange Agent the Aggregate Merger Consideration (the “Uncertificated Shares”). At the Effective 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 Payment Fund”). 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 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 fund diminishes for other reasons any reason below the level required to make prompt payments payment of the Merger Consideration as contemplated herebyConsideration, Parent shall promptly replace or restore restore, or cause to be replaced or restored, the lost portion of the Exchange Fund lost through investments or other events such fund so as to ensure that the Exchange Fund 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, (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 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. 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, in connection with the exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares of Company Common Stock.
(ab) Promptly after the Effective Time, Parent and in any event no later than three Business Days after the Effective Time, the Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each record holder of Shares 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) (other than shares of Company Common Stock subject to Company Restricted Stock Awards) a letter of transmittal and instructions in customary forms reasonably satisfactory to the Company and Parent (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) for use in such exchange. Each holder of Shares shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall (other than shares of Company Common Stock subject to Company Restricted Stock Awards) shall, subject to Section 2.04(e), 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 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 Sharesshares of Company Common Stock, and, in each case, delivery to the Merger Consideration payable for each Share represented Exchange Agent of such other documents as may reasonably be requested by a Certificate or for each Uncertificated Sharethe 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 the such Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(bc) 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 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 Tax has been paid or is not payable.
(cd) 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 Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. 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 as provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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) Payment Fund that remains unclaimed by undistributed to the holders of Shares one year shares of Company Common Stock 12 months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Merger Consideration in respect of such Shares Consideration, without any interest thereonthereon but subject to any applicable withholdings. Notwithstanding None of Parent, the foregoing, Parent Company or the Surviving Corporation shall not be liable to any holder of Shares Company Common Stock for any amount paid cash from the Payment Fund delivered to a public official pursuant to applicable any abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an exchange agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) certificates representing Shares (the “Certificates”) ; or (ii) uncertificated Shares book-entry shares which immediately prior to the Effective Time represented the Table of Contents shares of Company Common Stock (the “Uncertificated Book-Entry Shares”). At Promptly after the Effective Time and in any event within two (2) Business Days after the Effective Time, Parent shall provide deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent funds representing the aggregate Merger Consideration to be paid Agent, in respect of the Certificates and the Uncertificated Shares pursuant to Section 3.02(a) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate account for the benefit of the holders of Shares, sufficient funds to pay the aggregate Merger Consideration that is payable in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares and (ii) the “Payment Fund”). If for any reason the cash in the Payment Fund shall be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall promptly applied deposit cash into the Payment Fund in an amount which is equal to making the deficiency in the amount of cash required to make the aggregate cash payments provided for in required by Section 3.02(a3.01(b). The Exchange Payment Fund shall not be used for any purpose that is not provided for hereinother purpose. The Exchange Agent Surviving Corporation shall invest any cash included in the Exchange Fundpay all charges and expenses, 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 including those of the Exchange Fund lost through investments or other events so as to ensure that Agent, in connection with the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
exchange of Shares for the Merger Consideration. Promptly after the Effective Time and in any event within five (a5) Promptly Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares shares of Company Common Stock at the Effective Time 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 Book-Entry Shares to the Exchange Agent) for use in such exchange. .
(b) Each holder of Shares shares of Company Common Stock that have been converted into the right to receive the 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 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 Book-Entry Share, as applicable, shall represent after the Effective Time for all purposes only the right to receive 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.
(bc) 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 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 oror such Book-Entry Share shall be properly transferred, 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 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 Tax has been paid or is not payable.
(cd) 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. From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company 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 Surviving Corporation, they Parent or the Exchange Agent for transfer, the holder of such Certificates or Book-Entry Shares shall be canceled and exchanged for the Merger Consideration provided for, and in accordance instructed to comply with the procedures set forth, letter of transmittal and instructions referred to in Section 3.02(b) in order to receive the cash to which the holder of such Certificate is entitled pursuant to this Article 3III.
(de) 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) Payment Fund that remains unclaimed by the holders of Shares one year shares of Company Common Stock twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.03 3.02 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled theretoConsideration.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an agent, reasonably acceptable satisfactory to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares shares of Company Common Stock (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). At Prior to the Effective Time, Parent shall provide deposit or cause to be deposited with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held a separate fund established for the benefit of the holders of Shares and (ii) promptly applied shares of Company Common Stock, cash sufficient to making pay the payments provided aggregate Merger Consideration required to be paid for in Section 3.02(a)all of the Certificates at the Effective Time. The Any cash deposited with the Exchange Fund Agent shall not be used for any purpose that is not provided for herein. The other than as set forth in this Article 2 and shall be invested by the Exchange Agent shall invest any cash included in as directed by Parent or the Exchange Fund, in Surviving Corporation in: (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of AmericaAmerica with a remaining Table of Contents term at the time of acquisition thereof not in excess of 90 days, obligations for which (B) money market accounts or certificates of deposit maturing within 90 days of the full faith acquisition thereof and credit issued by a bank or trust company organized under the laws of the United States of America is pledged or a State thereof having a combined capital surplus in excess of $500,000,000 (a “United States Bank”), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by ▇▇▇▇▇’▇ Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. The earnings and interest thereon shall be paid to provide for the payment of all principal and interest, Parent or as otherwise directed by ParentParent directs. 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.
(a) Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares record of 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 Shares to the Exchange Agent) for use in such exchange. .
(b) Each holder of Shares shares of Company Common Stock 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, the Merger Consideration payable for each Share in respect of the Company Common Stock represented by a Certificate or for each Uncertificated Sharesuch Certificate. 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 such Merger Consideration.
(bc) 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 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 tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(de) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a2.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year shares of Company Common Stock six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Table of Contents Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority governmental 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.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Barra Inc /Ca)
Surrender and Payment. (a) Within fifteen days from the date hereof, Parent shall deposit, or cause to be deposited, in escrow with the Escrow Agent, an aggregate amount in cash equal to the Escrow Amount, to be distributed as set forth herein and in accordance with the terms of the Escrow Agreement. The Escrow Amount shall be held under the sole dominion and control of the Escrow Agent until the earlier of (x) the delivery of confirmation from the Exchange Agent and the Company of receipt by the Exchange Agent of the full amount of the Payment Fund, less the Escrow Amount, from Parent in accordance with the terms and conditions of Section 2.02(b) hereof, in which case the Escrow Amount shall be automatically released by the Escrow Agent to the Exchange Agent, (y) subject to the satisfaction of the conditions set forth in Section 6.02 hereof (other than those conditions that by their nature are to be satisfied at the Closing) and the receipt of the Company Stockholder Approval (unless terminated prior to the date of the Company Stockholder Meeting), termination of this Agreement by the Company pursuant to Section 7.04(b) hereof based on the failure of Parent to pay the full amount of the Payment Fund in accordance with Section 2.02(b) hereof, in which case the Escrow Amount shall be automatically released by Escrow Agent to the Company, or (z) termination of this Agreement for any other reason pursuant to the terms of Article VII (excepting termination by the Company pursuant to Section 7.04(b)), in which case the Escrow Amount shall be automatically released by the Escrow Agent to Parent; provided, however, that the Escrow Agent will not release such funds if the Escrow Amount is subject to a pending claim against it made by the Company in good faith.
(b) Prior to the Effective Time, Parent shall appoint a bank or trust company or similar entity an exchange agent reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers to act as Exchange Agent in the Merger (the “Exchange Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) certificates representing Shares (the “Certificates”) , or (ii) uncertificated Shares book-entry shares which immediately prior to the Effective Time represented the shares of Company Common Stock (the “Uncertificated Book-Entry Shares”). At On the day that is at least two (2) Business Days prior to the Effective Time, Parent shall provide deposit, or cause to be deposited, with the Exchange Agent sufficient funds representing to pay (i) the aggregate Merger Consideration that is payable in accordance with Section 2.01(b) hereof and (ii) the full amount due or payable with respect to be paid in respect of the Certificates and the Uncertificated Shares pursuant to Company Pay-off Loans as contemplated by Section 3.02(a) 1.07 hereof (such funds constituting the “Exchange Payment Fund”). The If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares or lenders shall be entitled under this Article II, Parent shall deposit or cause to be deposited in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall cause the Exchange Fund to in any event be (i) held liable for the benefit of the holders of Shares and (ii) promptly applied to making the payments provided for in Section 3.02(a)payment thereof. The Exchange Payment Fund shall not be used for any purpose that is not provided for hereinother purpose, except as otherwise agreed by the Company and Parent before the Effective Time. The Exchange Agent Surviving Corporation shall invest any cash included in the Exchange Fundpay all charges and expenses, 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 including those of the Exchange Fund lost through investments or other events so Agent, in connection with the exchange of Company Common Stock for the Merger Consideration. As promptly as to ensure that reasonably practicable after the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
Effective Time (abut in no event later than two (2) Promptly Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares 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. .
(c) Each holder of Shares shares of Company Common Stock that have been converted into the right to receive the 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 book-entry transfer of Uncertificated Shares, 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.
(b) 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.
(c) 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.
(d) 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 one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.Book-
Appears in 1 contract
Surrender and Payment. (a) Prior to the 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 Exchange Agent in the Merger (the “Exchange Paying Agent”) ), for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or Certificates and (ii) uncertificated Shares (the “Uncertificated Book-Entry Shares”). At On the Effective TimeClosing Date, Parent or one of its Affiliates shall provide make available to the Exchange Agent funds representing Paying Agent, as needed, the aggregate Merger Consideration to be paid payable in respect of all the Shares converted in accordance with Section 2.02(a) and represented by the Certificates and the Uncertificated Book-Entry Shares pursuant to Section 3.02(a) (such cash, the “Exchange Consideration Fund”). The Exchange Agent 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(h)) or any Merger Consideration 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 the Exchange Fund to be (i) held for delivered, additional funds to the benefit of Paying Agent in an amount equal to the holders of Shares and (ii) promptly applied deficiency required to making the payments provided for in Section 3.02(a)make such payments. The Exchange Consideration 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 paymentspurpose.
(ab) Promptly With respect to Certificates, promptly (and in any event not later than the third (3rd) Business Day) after the Effective TimeTime , Parent shall send, or shall cause the Exchange Paying Agent to send, to each holder of Shares 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 2.09) to the Exchange Paying Agent (a “Letter of Transmittal”) and (iii) instructions for surrendering a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 2.09) to the Paying 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) Upon surrender to the Exchange Paying Agent of a Certificate, Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 2.09) 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 the case of a book-entry transfer of Uncertificated Shares, Effective Time the Merger Consideration payable for each Share represented by a such Certificate or for each Uncertificated Sharepursuant to Section 2.02(a). Any Certificate that has been so surrendered shall be canceled by the Paying Agent. Until so surrendered or transferred, as the case may be, and subject to the terms of Section 2.04, each such Certificate or Uncertificated Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive 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.
(bc) If With respect to Book-Entry Shares not held through DTC (each, a “Non-DTC Book-Entry Share”), promptly (and in any event not later than the third (3rd) Business Day) after the Effective Time, Parent shall send, or shall cause the Paying Agent to send, to each holder of record of a Non-DTC Book-Entry Share (i) a notice advising such holders of the effectiveness of the Merger, (ii) a Letter of Transmittal and (iii) instructions for surrendering the Non-DTC Book-Entry Share to the Paying Agent. Upon surrender to the Paying Agent of Non-DTC Book-Entry Shares by book-receipt of an “agent’s message” by the Paying Agent in accordance with the terms of the Letter of Transmittal and accompanying instructions, Parent shall cause the Paying Agent to pay and deliver as promptly as reasonably practicable after the Effective Time, the Merger Consideration payable for each such Non-DTC Book-Entry Share pursuant to Section 2.02(a).
(d) With respect to Book-Entry Shares held through DTC, the Company and Parent shall cooperate to 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 Merger Consideration payable for each such Book-Entry Share pursuant to Section 2.02(a).
(e) With respect to any Certificate or Non-DTC Book Entry Share, 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 Non-DTC 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, in the case of Uncertificated Shares, that or such documentation as may Non-DTC Book-Entry 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 Paying Agent any transfer or other Taxes required to be paid by the Paying Agent, Parent or their respective Affiliates as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Non-DTC Book-Entry Share or establish to the satisfaction of the Exchange Paying Agent and Parent that such Tax has been paid or is not payable.
(cf) 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 Merger Consideration 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 Merger Consideration 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.
(g) From and after the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Book-Entry Shares are presented to the Surviving CorporationCorporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(dh) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) Fund (and any earnings, interest or other income earned thereon) that remains unclaimed by the holders of Shares one year six months after the Effective Time shall be returned to ParentParent or one of its Affiliates, upon demand, and any such holder who has not exchanged such its Shares for the Merger Consideration in accordance with this Section 3.03 2.03 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 Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of Shares for any amount 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 If any Certificate or Book-Entry Share has not been surrendered immediately prior to the time when such amounts date on which the Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeAuthority, any such Merger Consideration in respect of such Certificate or Book-Entry Share shall, to the extent permitted by Applicable applicable Law, 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.
(ei) Any portion of the Merger Consideration made available to the Exchange Paying Agent pursuant to Section 3.03(a2.03(a) to pay for Shares for which appraisal rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, Parent or one of its Affiliates upon demand.
(j) 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 formerly represented by such Certificate or Book-Entry Shares.
Appears in 1 contract
Surrender and Payment. (a) Pursuant to Section 3.3 of the Separation Agreement, the Exchange Agent (as defined below, and acting as “Distribution Agent” thereunder) shall hold, for the account of the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed or exchanged, as applicable, in the Distribution (other than any shares of Hook Stock, which shares of Hook Stock are addressed in and shall be treated in accordance with Section 3.4 of the Separation Agreement).
(b) Prior to the Effective Time, Parent RMT Partner shall appoint designate a nationally recognized commercial 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 Exchange Agent in the Merger agent (the “Exchange Agent”) for the purpose benefit of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”holders of shares of SpinCo Common Stock whose shares of SpinCo Common Stock are exchanged in accordance with this Section 3.2(b). At or substantially concurrently with the Effective Time, Parent SpinCo shall provide deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of shares of SpinCo Common Stock, for exchange in accordance with this Section 3.2(b) as promptly as practicable after the Effective Time, book-entry shares representing the Merger Consideration issuable to holders of shares of SpinCo Common Stock as of immediately prior to the Effective Time pursuant to Section 3.1(a)(i) (such book-entry shares of RMT Partner Common Stock, together with any cash received by the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares dividends or distributions with respect thereto pursuant to Section 3.02(a3.2(d) (and other amounts payable in accordance with Section 3.2(e), the “Exchange Fund”). The Exchange Agent shall cause shall, following the Effective Time, pursuant to irrevocable instructions from RMT Partner, deliver the Merger Consideration out of the Exchange Fund. The cash portion, if any, of the Exchange Fund to shall be invested by the Exchange Agent as directed by RMT Partner; provided that (i) held for no such investment of or losses thereon shall relieve RMT Partner from making or causing to be made the benefit payments required by this Section 3.2 or elsewhere in this Agreement, or affect the amount payable in respect of the holders shares of Shares and SpinCo Common Stock outstanding as of immediately prior to the Effective Time, (ii) to the extent the Exchange Fund is insufficient at any time to make such payments, RMT Partner shall promptly applied provide additional funds to making the Exchange Agent in the amount of any such deficiency and (iii) no such investment shall have maturities that would reasonably be expected to prevent or delay the payments provided for in to be made pursuant to this Section 3.02(a)3.2. Any interest or other income from such investments shall be paid to and become the property of RMT Partner. The Exchange Fund shall not be used for any purpose that is not provided for hereinother than as specified in this Section 3.2(b). The Exchange Agent No later than ten (10) Business Days prior to the Effective Time, RMT Partner shall invest any cash included in enter into an agreement with the Exchange FundAgent, in direct obligations form and substance reasonably satisfactory to the Company, to effect the applicable terms of this Agreement (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“Agent Agreement”).
(ac) Promptly As promptly as practicable after the Effective Time, Parent shall send, or RMT Partner shall cause the Exchange Agent to send, deliver to each holder of Shares at shares of SpinCo Common Stock following the Distribution and immediately prior to the Effective Time a letter Time, from the Exchange Fund, the shares of transmittal and instructions (RMT Partner Common Stock into which shall specify that the delivery shall be effected, and risk such shares of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares SpinCo Common Stock have been converted pursuant to the Exchange Agent) Merger, which shares shall, for use the sake of clarity, be delivered to the same Persons who received shares of SpinCo Common Stock in the Distribution (in respect of such exchangeshares of SpinCo Common Stock). Each holder of Shares that have been converted into shares of SpinCo Common Stock following the right Distribution and immediately prior 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, 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.
(b) 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.
(c) 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.
(d) 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 one year after the Effective Time shall be returned entitled 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 receive in respect of such Shares without shares of SpinCo Common Stock held by such Person a book-entry authorization representing the number of whole shares of RMT Partner Common Stock that such holder has the right to receive pursuant to this Section 3.2(c) (and cash in lieu of fractional shares of RMT Partner Common Stock, as contemplated by Section 3.2(e), and any interest thereondividends or distributions and other amounts pursuant to Section 3.2(d)). Notwithstanding the foregoing, Parent The Exchange Agent shall not be liable entitled to vote or exercise any holder rights of Shares for any amount paid ownership with respect to a public official pursuant RMT Partner Common Stock held by it from time to applicable abandoned property, escheat time hereunder or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to under the time when 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, free and clear of any claims or interest of any Person previously entitled theretoAgent Agreement.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall Dai-ichi will appoint a U.S. 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 Exchange Agent in the Merger Protective (the “Exchange Agent”) for the purpose of exchanging Certificates for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”)Consideration. At the Effective 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”). 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 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 soon 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.
(a) Promptly reasonably practicable after the Effective Time, Parent shall but in no event more than two Business Days following the Effective Time, Dai-ichi will send, or shall will cause the Exchange Agent to send, to each holder of Shares at record of shares of Common Stock as of the Effective Time Time, whose shares of Common Stock were converted into the right to receive the Merger Consideration, a letter of transmittal and instructions (which shall will specify that the delivery shall will be effected, and risk of loss and title shall will pass, only upon proper delivery of the Certificates (or transfer effective affidavits of the Uncertificated Shares loss in lieu thereof) to the Exchange Agent) in such form as Protective and Dai-ichi may reasonably agree, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration.
(b) At or prior to the Effective Time, Dai-ichi will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of Common Stock, an amount of cash in United States dollars sufficient to make the payments contemplated by Section 2.06, payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article III. All cash deposited with the Exchange Agent is referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate Merger Consideration out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. The Exchange Agent will invest any cash included in the Exchange Fund as directed by Dai-ichi; provided that no such exchangeinvestment or losses thereon will affect the Merger Consideration payable to holders of shares of Common Stock entitled to receive such consideration and Dai-ichi will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Dai-ichi.
(c) Each holder of Shares shares of Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receiveConsideration, upon (i) surrender to the Exchange Agent of a CertificateCertificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, or duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor a check in the amount, if any, that such holder has the right to receive in cash pursuant to Section 2.06 and this Article III. The Merger Consideration will be paid as promptly as practicable (iiby mail or, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of a Certificate) after receipt of an “agent’s message” by the Exchange Agent (of the Certificate and letter of transmittal in accordance with the foregoing. No interest will be paid 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 accrued on any Merger Consideration or on any unpaid dividends and distributions 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 Considerationholders of Certificates.
(bd) If any portion of the 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 is registered, it shall will 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, 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 will pay to the Exchange Agent any transfer or other similar 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 Certificate or will 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 will be a condition to the registration thereof that the surrendered Certificate will be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration will pay to the Exchange Agent any transfer or other similar Taxes required as a result of such 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 Tax has been paid or is not payable.
(ce) After the Effective Time, there shall will be no further registration of transfers of Sharesshares of Common Stock outstanding prior to the Effective Time other than as provided for in Section 2.06(d). From and after the Effective Time, the holders of Certificates representing shares of Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of 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 Surviving CorporationExchange Agent or Dai-ichi, they shall will be canceled cancelled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, forth in Article II and this Article III. Notwithstanding anything to the contrary contained in this Article 3Agreement, the Surviving Corporation is obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by Protective with respect to shares of Common Stock in accordance with the terms of this Agreement prior to the Effective Time which remain unpaid at the Effective Time.
(df) 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 holders of Shares shares of Common Stock one year after the Effective Time shall will be returned to ParentDai-ichi, upon demand, and any such holder who has not exchanged such Shares his or her shares of Common Stock for the Merger Consideration in accordance with this Section 3.03 Article III prior to that time shall will thereafter look only to Parent Dai-ichi for payment delivery of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding holder’s shares of Common Stock.
(g) Neither Dai-ichi, the foregoing, Parent shall not Surviving Corporation nor the Exchange Agent will be liable to any former holder of Shares Common Stock for any amount paid portion of the Merger Consideration delivered to a public official any Government Authority pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately In the event any Certificate has not been surrendered prior to the time when date as of which such amounts would otherwise escheat Certificate or the Merger Consideration payable upon the surrender thereof escheats to or become otherwise becomes the property of any Governmental Authority shall becomeAuthority, to the extent permitted by Applicable LawDai-ichi, the property of Parent, free Surviving Corporation and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Exchange Agent will be permitted to comply with such Laws and the Merger Consideration made available otherwise payable upon the surrender of such Certificate will be treated for all purposes under this Agreement as having been paid to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment holder of the fair value shares of Common Stock represented by such Shares have been perfected shall be returned to Parent, upon demandCertificate.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent ChipMOS Taiwan shall appoint a Citibank N.A., or any other reputable U.S. national bank or trust company or similar entity reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers parties, to act as Exchange Agent in the Merger agent of ChipMOS Taiwan (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration for (i) certificates representing IMOS Shares (the “Certificates”) or (ii) uncertificated IMOS Shares (the “Uncertificated Shares”). At or substantially concurrently with the Effective Time, Parent ChipMOS Taiwan shall provide (A) deposit, or cause to be deposited with the Depositary Bank (or a custodian designated by the Depositary Bank), a number of ChipMOS Taiwan Shares equal to the product of (x) the aggregate number of ChipMOS Taiwan ADSs to be issued as Share Consideration, multiplied by (y) the ADS Shares Number, and (B) deposit with 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”). The Exchange Agent shall cause the Exchange Fund to be (i) held Agent, for the benefit of the holders IMOS Shareholders, for exchange in accordance with this Section 2.04, through the Exchange Agent, (x) immediately available funds sufficient to pay the aggregate Cash Consideration payable pursuant to Section 2.03, together with any cash in lieu of Shares fractional ChipMOS Taiwan ADSs pursuant to Section 2.09, and (iiy) promptly applied the receipts (or uncertificated book-entries, as applicable) representing such aggregate number of ChipMOS Taiwan ADSs. Prior to making the payments provided for in Section 3.02(a). The Exchange Fund Effective Time, ChipMOS Taiwan shall not be used for any purpose that is not provided for herein. The Exchange Agent shall invest any cash included in authorize and instruct the Depositary Bank to issue at the Effective Time and to deposit with the Exchange FundAgent, in direct obligations for the benefit of the United States of AmericaIMOS Shareholders, 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 ParentChipMOS Taiwan ADSs evidencing such ChipMOS Taiwan Shares in accordance with this Agreement. 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.
(a) Promptly after the Effective Time, Parent shall send, or ChipMOS Taiwan shall cause the Exchange Agent to send, to each holder of record of Certificates representing IMOS 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. the surrender of Certificates for the Merger Consideration.
(b) Each holder of IMOS 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 the IMOS Shares (A) the number of whole ChipMOS Taiwan ADSs that such holder has the right to receive pursuant to the provisions of this Article 2, after taking into account all the IMOS Shares then held by such holder, and (B) a Certificatecheck for the full amount of cash that such holder has the right to receive pursuant to the provisions of this Article 2, together including the Cash Consideration, cash in lieu of fractional ChipMOS Taiwan ADSs, certain dividends or other distributions, if any, in accordance with a properly completed letter Section 2.04(f), in each case less any required withholding of transmittal, or (ii) receipt Taxes. Holders of an “agent’s message” by IMOS Uncertificated Shares shall not be required to take any actions to surrender their IMOS Uncertificated Shares to the Exchange Agent (or such other evidence, if any, of transfer as holders shall be deemed to have surrendered their IMOS Shares to the Exchange Agent may reasonably requestimmediately after the Effective Time). Holders of IMOS Certificated Shares shall be required to surrender the Certificates representing such IMOS Shares to the Exchange Agent with a duly completed and signed letter of transmittal in order to receive the Merger Consideration and applicable dividends or other distributions under Section 2.04(f). Certificates or Uncertificated Shares so surrendered or transferred will forthwith be canceled. ChipMOS Taiwan ADSs shall be accepted into The Depository Trust Company (“DTC”) and issued in the case of a uncertificated book-entry transfer form to such account as shall be specified by the DTC, unless a physical ADR is requested or otherwise required by Applicable Law, in which case ChipMOS Taiwan shall cause the Exchange Agent to send an ADR representing such ChipMOS Taiwan ADSs to DTC. ChipMOS Taiwan shall cause the Exchange Agent to coordinate the exchange of Uncertificated Shares, IMOS Shares for the Merger Consideration payable promptly after the Effective Time, and issue to holders of Uncertificated Shares (x) a statement evidencing the issuance of the applicable ChipMOS Taiwan ADSs under the name of such holder and (y) a check for each Share represented by a Certificate or the applicable Cash Consideration and for each Uncertificated Shareany applicable cash-in-lieu payment. 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 Merger Consideration and the right to receive any dividends or other distributions pursuant to Section 2.04(f). No interest will be paid or will accrue on any Merger ConsiderationConsideration or unpaid dividends and other distributions, if any, payable to holders of Certificates or Uncertificated Shares pursuant to this Article 2.
(bc) 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 accompanied by a duly executed instrument of transfer 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 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 tax has been paid or is not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of IMOS Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving CorporationCompany or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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 thereon2.04(a) that remains unclaimed by the holders of IMOS Shares one year six months after the Effective Time shall be returned to ParentChipMOS Taiwan, upon demand, and any such holder who has not exchanged such IMOS Shares for the Merger Consideration in accordance with this Section 3.03 2.04 prior to that time shall thereafter look only to Parent ChipMOS Taiwan for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto pursuant to Section 2.04(f), in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent ChipMOS Taiwan shall not be liable to any holder of IMOS Shares for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of IMOS Shares two years after the Effective Time (or such earlier date, immediately prior to the such time when such the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Law, the property of Parent, ChipMOS Taiwan free and clear of any claims or interest of any Person previously entitled thereto.
(e) . Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a2.04(a) to pay for IMOS Shares for which appraisal rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, ChipMOS Taiwan upon demand.
(f) No dividends or other distributions with respect to ChipMOS Taiwan ADSs constituting part of the Merger Consideration, and no cash payment in lieu of fractional ChipMOS Taiwan ADSs as provided in Section 2.09, shall be paid to the holder of any Certificates not surrendered until such Certificates are surrendered, as the case may be, as provided in this Section 2.04. Following such surrender, there shall be paid, without interest, to the Person in whose name the Certificates have been registered, (i) at the time of such surrender, the amount of any cash payable in lieu of fractional ChipMOS ADSs to which such Person is entitled pursuant to Section 2.09 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.
Appears in 1 contract
Sources: Merger Agreement (Chipmos Technologies Bermuda LTD)
Surrender and Payment. (a) Prior to the Effective Time, Parent Newco 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 Exchange Agent in the Merger an exchange agent (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration Consideration, (i) certificates representing Aspen Shares (the each a “CertificatesCertificate”) or (ii) uncertificated Aspen Shares which immediately prior to the Effective Time were registered to a holder on the stock transfer books of Aspen (the “Uncertificated Shares”). At or prior to the Effective Time, Parent Newco shall provide deposit, or cause to be deposited, with the Exchange Agent funds Agent, for exchange in accordance with this Section 2.05 through the Exchange Agent, (i) evidence of shares in book-entry form representing the aggregate Merger Consideration to be paid in respect shares of the Certificates and the Uncertificated Shares Newco Stock issuable pursuant to Section 3.02(a) (the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Shares 2.04 and (ii) promptly applied to making the payments provided for cash 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 immediately available funds 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 an amount sufficient for the payment of all principal and interestcash amounts payable pursuant to Section 2.04. Newco agrees to make promptly available, directly or as otherwise directed by Parent. Any interest and other income resulting from such investments shall be kept in indirectly, to the Exchange Fund. To the extent that there are losses with respect Agent from time to such investments, or the Exchange Fund diminishes for other reasons below the level required time as needed additional cash sufficient 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 pay any dividends or other events so as distributions to ensure that the Exchange Fund is, at all times, maintained at a level sufficient which holders of Aspen Shares are entitled pursuant to make Section 2.05(f) and cash in lieu of any fractional shares of Newco Stock to which such payments.
(a) holders are entitled pursuant to Section 2.11. Promptly after the Effective TimeTime and in any event within three Business Days after the Closing Date, Parent Newco shall send, or shall cause the Exchange Agent to send, to each holder of Aspen Shares 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. All evidence of shares of Newco Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund.” Newco shall cause the Exchange Agent to deliver the Merger Consideration 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 Newco. Any interest and other income resulting from such investments shall be the property of, and paid to, Newco upon termination of the Exchange Fund.
(b) Each holder of Aspen 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, the Merger Consideration payable for in respect of each Aspen 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 Share, the Merger ConsiderationConsideration and any dividends and distributions with respect thereto as contemplated by Section 2.05(f). The shares of Newco Stock constituting Merger Consideration shall, at Newco’s option, be in uncertificated book-entry form, unless a physical certificate is required under Applicable Law.
(bc) If any portion of the Merger Consideration (or any dividends and distributions with respect thereto contemplated by 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, 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 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 Tax has transfer or similar Taxes have been paid or is are not payable.
(cd) After the Effective Time, there shall be no further registration of transfers of Aspen Shares. 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 (and any dividends and distributions with respect thereto contemplated by Section 2.05(f)) provided for, and in accordance with the procedures set forth, in this Article 32.
(de) 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 holders of Shares one year after shares of Aspen Stock twelve months following the Effective Time Closing Date shall be returned delivered to ParentNewco or as otherwise instructed by Newco, upon demand, and any such holder who has not exchanged such Aspen Shares for the applicable Merger Consideration in accordance with this Section 3.03 2.05 prior to that such time shall thereafter look only to Parent Newco for payment of the such Merger Consideration in (and any dividends and distributions with respect of such Shares thereto as contemplated by Section 2.05(f)), without any interest thereon. Notwithstanding the foregoing, Parent Newco and its Subsidiaries (including, after the Closing, the Surviving Corporation and its Subsidiaries) shall not be liable to any holder of Aspen Shares for any amount 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 Aspen Shares immediately prior to the such time when such 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, Newco free and clear of any claims or interest of any Person previously entitled thereto.
(ef) Any portion Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.05, and in any event within two Business Days following 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 Newco Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration made available Consideration, (x) the amount of any cash payable in lieu of fractional shares to the Exchange Agent which such Person is entitled pursuant to Section 3.03(a2.11, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to pay for Shares for which rights such shares of Newco Stock with a record date on or after the Effective Time that were paid prior to receive the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the fair value Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Newco Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such Shares have been perfected 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 Newco Stock constituting the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.11, as applicable, shall be returned paid to Parentthe holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, upon demandas the case may be, as provided in this Section 2.05.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Emerson Electric Co)
Surrender and Payment. (a) Prior At least three Business Days prior to the Effective TimeClosing Date, 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 Exchange Agent in the Merger (the “Exchange Agent”) and enter into an exchange agent agreement, reasonably acceptable to the Company, with the Exchange Agent for the purpose of exchanging for the Merger Consideration as promptly as practicable after the Effective Time (i) certificates representing Company Common Shares (the “Certificates,” and such underlying shares, “Certificated Shares”) or (ii) uncertificated Company Common Shares (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall provide make available to the Exchange Agent funds representing the aggregate Merger Consideration to be paid in respect of the Certificates Certificated Shares and the Uncertificated Shares pursuant to Section 3.02(a) (Shares. Such cash may be invested by the “Exchange Fund”). The Exchange Agent shall cause the Exchange Fund to be as directed by P▇▇▇▇▇; provided (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments provided for that such investments must be 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 with maturities of America, obligations for which no more than thirty days or guaranteed by the United States and backed by the full faith and credit of the United States of America is pledged or in commercial paper obligations rated A-1 or P-1 or better by M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (ii) no such investment will relieve Parent or the Exchange Agent from making the payments required by this Article 2 and (iii) no such investment will have maturities that could prevent or delay payments to provide for the payment of all principal and interest, or as otherwise directed by Parentbe made pursuant to this Agreement. Any interest and other or income resulting from produced by such investments shall will be kept in payable to the Exchange FundSurviving Corporation or Parent, as Parent directs. To the extent that there are losses No loss incurred with respect to such investmentsinvestments will decrease the amounts payable pursuant to this Agreement. In the event that the amount of cash held by the Exchange Agent is insufficient to pay the aggregate Merger Consideration, Parent will promptly deposit, or cause to be deposited, additional funds with the Exchange Fund diminishes for other reasons below Agent in an amount which is equal to the level deficiency in the amount required to make prompt all such payments of the pursuant to Section 2.03(b). The aggregate Merger Consideration as contemplated hereby, Parent shall promptly replace or restore the portion of so deposited with the Exchange Fund lost through investments or Agent will not be used for any purpose other events so than to fund payments pursuant to Section 2.03(b), except as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsexpressly provided for in this Agreement.
(ab) Promptly As promptly as practicable after the Effective TimeTime (but no later than three Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Company Common Shares at the Effective Time a letter of transmittal and instructions (in each case, which shall will be in a form reasonably acceptable for the Company and finalized prior to the Effective Time, and which will specify that the delivery shall will be effected, and risk of loss and title shall will pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof pursuant to Section 2.08) or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Each holder of Company Common Shares that have been converted into the right to receive the 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 Certificate (or such other evidence, if any, affidavits of transfer as the Exchange Agent may reasonably request) loss in the case of a book-entry transfer of Uncertificated Shares, 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.
(b) 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.
(c) 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.
(d) Any portion of the Merger Consideration made available to the Exchange Agent lieu thereof pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year 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. Any amounts remaining unclaimed by holders of Shares immediately prior to the time when 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, free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) to pay for Shares for which rights to receive payment of the fair value of such Shares have been perfected shall be returned to Parent, upon demand.Section
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time and LLC Merger Effective Time, as applicable, Parent shall appoint a bank the Company’s transfer agent or trust company or similar entity another nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company which is authorized to exercise corporate trust or stock powers Company) to act as Exchange Agent exchange agent in the Corporate Merger and the LLC Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (exchanging each share of Company Common Stock outstanding immediately prior to the “Certificates”) or Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares, and (ii) uncertificated Shares exchanging each OpCo Class A Common Unit (other than the “Uncertificated Shares”)Cancelled Units and the Excluded Units) outstanding immediately prior to the LLC Merger Effective Time represented by a Book-Entry Unit outstanding immediately prior to the LLC Merger Effective Time. At Prior to the Effective Time and LLC Merger Effective Time, Parent shall provide (i) deposit or cause to be deposited with the Exchange Agent funds representing an aggregate number of shares of Parent Common Stock equal to the aggregate Corporate Merger Consideration to be paid delivered in respect of the Certificates shares of Company Common Stock and the Uncertificated Shares LLC Merger Consideration to be delivered in respect of the OpCo Class A Common Units pursuant to Section 3.02(a3.01 and Section 3.02, as applicable, and (ii) to the extent required, deposit or cause to be deposited with the Exchange Agent any cash payable in lieu of fractional shares pursuant to Section 3.03(h) (such consideration shall be referred to in this Agreement as the “Exchange Fund”). The Exchange Agent shall cause shall, pursuant to written instructions by ▇▇▇▇▇▇, deliver the Parent Common Stock comprising the Corporate Merger Consideration and LLC Merger Consideration contemplated to be issued pursuant to Section 3.01 and Section 3.02, and any cash payable in lieu of fractional shares pursuant to Section 3.03(h), out of the Exchange Fund to be (i) held for the benefit of the holders of Shares and (ii) promptly applied to making the payments provided for in Section 3.02(a)Fund. 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 paymentspurpose.
(ab) Promptly As soon as reasonably practicable after the Effective Time and the LLC Merger Effective Time, as applicable, and in any event not later than the second (2nd) Business Day following the Effective Time and the LLC Merger Effective Time, as applicable, Parent shall send, or shall will cause the Exchange Agent to send, send to each holder of Shares at record of (i) an outstanding share of Company Common Stock represented by a Certificate or an outstanding Book-Entry Share immediately prior to the Effective Time (other than the Cancelled Shares) and (ii) an outstanding Book-Entry Unit immediately prior to the LLC Merger Effective Time (other than the Cancelled Units and the Excluded Units) (x) 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 loss in lieu thereof) or Book-Entry Shares or Book-Entry Units, as applicable, to the Exchange Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock outstanding immediately prior to the Effective Time and entitled to Corporate Merger Consideration pursuant to Section 3.02 and the OpCo Class A Common Units outstanding immediately prior to the LLC Merger Effective Time and entitled to LLC Merger Consideration pursuant to Section 3.02 to the Exchange Agent, and (y) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares or Book-Entry Units, as applicable, in exchange for the Corporate Merger Consideration or LLC Merger Consideration, as applicable, in such exchange. Each form as Parent and the Company may reasonably agree.
(c) Upon the surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Shares or Book-Entry Units, as applicable, for cancellation to the Exchange 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 OpCo Class A Common Units and such other documents as may be reasonably required pursuant to such instructions, the holder of Shares such shares of Company Common Stock or OpCo Class A Common Units represented by such Certificate as of immediately prior to the Effective Time or the LLC Merger Effective Time, as applicable, or of such Book-Entry Share or Book-Entry Unit immediately prior to the Effective Time or the LLC Merger Effective Time, as applicable, shall be entitled to receive in exchange therefor (i) the Corporate Merger Consideration or LLC Merger Consideration, as applicable, pursuant to the provisions of this Article III, which shall represent, in the aggregate, the whole number of shares of Parent Common Stock, if any, that have been converted into such holder has the right to receive the Merger Consideration shall be entitled pursuant to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or this Section 3.03 and (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) a check in the case amount equal to any cash payable in lieu of a book-entry transfer of Uncertificated Shares, 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 fractional shares which such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only holder has the right to receive pursuant to Section 3.03, in each case, less any applicable withholding Taxes provided, that, the Merger Consideration.
(b) If any portion Certificates, Book-Entry Shares or Book-Entry Units surrendered shall forthwith be canceled. In the event of a transfer of ownership of a share of Company Common Stock or an OpCo Class A Common Unit that is not registered in the transfer records of the Company or OpCo, as applicable, payment of the appropriate amount of Corporate Merger Consideration is to or LLC Merger Consideration may be paid made to a Person other than the Person in whose name the Certificate, Book-Entry Share or Book-Entry Unit 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 transferred Uncertificated Exchange Agent and Parent) or such Book-Entry Share or Book-Entry Unit shall be properly transferred. No interest shall be paid or accrue on any Corporate Merger Consideration or LLC Merger Consideration payable upon surrender of any Certificate, Book-Entry Share or Book-Entry Unit. Until so surrendered, each such Certificate, Book-Entry Share or Book-Entry Unit shall, after the Effective Time or LLC Merger Effective Time, as applicable, represent for all purposes only the right to receive such Corporate Merger Consideration or LLC Merger Consideration, as applicable.
(d) If any payment is to be made to a Person other than the Person in whose name the applicable surrendered 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, 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 pay, or cause to the Exchange Agent be paid, any transfer or other Transfer Taxes required as a result by reason of the making of such payment to a Person other than the registered holder of such Certificate the surrendered Certificate, Book-Entry Unit or Uncertificated Book-Entry Share or shall establish to the reasonable satisfaction of the Exchange Agent that such Tax has Taxes have been paid or is are not payable.
(ce) After the Effective Time and LLC Merger Effective Time, as applicable, there shall be no further registration of transfers of Sharesshares of Company Common Stock or OpCo Class A Common Units that were issued and outstanding immediately prior to the Effective Time or the LLC Merger Effective Time, as applicable. From and after the Effective Time and the LLC Merger Effective Time, as applicable, the holders of outstanding shares of Company Common Stock represented by Certificates or Book-Entry Shares prior to the Effective Time and the holders of outstanding OpCo Class A Common Units represented by Book-Entry Units outstanding immediately prior to the LLC Merger Effective Time shall cease to have any rights with respect to such shares of Company Common Stock and OpCo Class A Common Units, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time and the LLC Merger Effective Time, Certificates as applicable, Certificates, Book-Entry Shares or Uncertificated Shares Book-Entry Units are presented to the Exchange Agent, the Surviving Corporation, the Surviving LLC or Parent, they shall be canceled cancelled and exchanged for the Merger Consideration consideration provided for, and in accordance with the procedures set forth, in this Article 3III.
(df) 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 holders of Shares shares of Company Common Stock or OpCo Class A Common Units after the date which is one (1) year after following the Effective Time shall be returned to Parent, or transferred as otherwise directed by ▇▇▇▇▇▇, upon demand, and any such . Any holder of shares of Company Common Stock or OpCo Class A Common Units who has not exchanged such Shares for the Merger Consideration his, her or its shares of Company Common Stock or OpCo Class A Common Units in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment delivery of the Corporate Merger Consideration or LLC Merger Consideration in respect of such holder’s shares of Company Common Stock or OpCo Class A Common Units. Parent shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Certificates, Book-Entry Shares without any interest thereonor Book-Entry Units for the Corporate Merger Consideration or LLC Merger Consideration. Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation or the Surviving LLC shall not be liable to any Person, including any holder of Shares shares of Company Common Stock, OpCo Class A Common Units or Company Stock Awards, including for any amount paid Corporate Merger Consideration, LLC Merger Consideration, OpCo Unit Consideration, RSU Consideration and Restricted Stock Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts Corporate Merger Consideration or LLC Merger Consideration remaining unclaimed by holders of Shares shares of Company Common Stock or OpCo Class A Common Units three (3) years after the Effective Time or LLC Merger Effective Time, as applicable, (or such earlier date immediately prior to the such time when as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomegovernmental body, agency, authority or entity) shall, 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.
(eg) Any portion All Corporate Merger Consideration, LLC Merger Consideration, OpCo Unit Consideration, RSU Consideration and Restricted Stock Consideration issued or paid upon conversion of the Merger Consideration made available shares of Company Common Stock, OpCo Class A Common Units or the Company Stock Awards, as applicable, in accordance with the terms of this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock, OpCo Class A Common Units or Company Stock Awards, as the case may be.
(h) Notwithstanding anything in this Agreement to the Exchange Agent contrary, no fractional shares of Parent Common Stock will be issued upon the conversion of shares of Company Common Stock or OpCo Class A Common Units pursuant to Article III. In lieu of any such fractional shares, each holder of such Company Common Stock Certificates, Book-Entry Shares or Common Units who would otherwise be entitled to such fractional shares shall be entitled to an amount in cash, without interest, rounded down to the nearest cent, equal to the product of (a) the amount of the fractional share interest in a share of Parent Common Stock to which such holder would, but for this Section 3.03(a3.03(h), be entitled under Section 3.01(a), Section 3.02(a), Section 3.02(d) and Section 3.06(b) and (b) an amount equal to $162.4043. No holder of shares of Company Common Stock or Opco Class A Common Units shall be entitled by virtue of the right to receive cash in lieu of fractional shares of Parent Common Stock described in this Section 3.03(h) to pay for Shares for which any dividends, voting rights to receive or any other rights in respect of any fractional share of Parent Common Stock. The payment of cash in lieu of fractional shares of Parent Common Stock is not a separately bargained-for consideration but merely represents a mechanical rounding-off of the fair value of such Shares have been perfected fractions in the exchange. Notwithstanding anything to the contrary herein, the consideration to be issued under this Article III shall be returned aggregated on a per holder basis when calculating the amount of cash to Parent, upon demandbe paid under this Article III in respect of fractional shares.
Appears in 1 contract
Sources: Merger Agreement (Bridge Investment Group Holdings Inc.)