Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger. (b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration. (i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered. (ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a). (iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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. (d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 3 contracts
Sources: Merger Agreement (Aspen Technology, Inc.), Merger Agreement (Emerson Electric Co), Merger Agreement (Aspen Technology, Inc.)
Surrender and Payment. (a) Prior On or prior to the Acceptance Closing Date, Parent shall appoint select a reputable bank or trust company reasonably satisfactory to the Company to act as exchange agent in the Merger (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a)Offer Price (i) Company Stock Certificates or (ii) Book Entry Shares. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositpay to the Exchange Agent, or shall cause the aggregate Offer Price to be deposited, paid in respect of the Company Stock Certificates and the Book Entry Shares. The cash amount so deposited with the Paying Exchange Agent cash sufficient is referred to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, as the “Payment Exchange Fund.”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only Exchange Agent will mail to the Person Persons who were record holders of Company Stock Certificates or Book Entry Shares immediately prior to the Effective Time: (i) a letter of transmittal in whose name customary form and containing such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), provisions as Parent may reasonably specify and the Company shall cooperate reasonably approve prior to establish procedures the Effective Time (including a provision confirming that delivery of Company Stock Certificates or Book Entry Shares shall be effected, and risk of loss and title to Company Stock Certificates or Book Entry Shares shall pass, only upon delivery of such Company Stock Certificates or Book Entry Shares to the Exchange Agent); and (ii) instructions for use in effecting the surrender of Company Stock Certificates or Book Entry Shares in exchange for the Offer Price. Upon surrender of a Company Stock Certificate or Book Entry Shares to the Exchange Agent for exchange, together with the Paying Agent, DTC, DTC’s nominees a duly executed letter of transmittal and such other necessary third-party intermediaries documents as may be reasonably required by the Exchange Agent or Parent: (A) the holder of such Company Stock Certificate or Book Entry Shares shall be entitled to ensure that receive in exchange therefor the Paying Agent will transmit to DTC Offer Price; and (B) the Company Stock Certificate or its nominees Book Entry Shares so surrendered shall be canceled. Until surrendered as promptly as practicable contemplated by this Section 2.07(b), each Company Stock Certificate and Book Entry Share shall be deemed, from and after the Effective Time, upon 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, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration Offer Price. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its reasonable discretion and as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of to the payment of the Merger Consideration Offer Price, require the owner of such lost, stolen or destroyed Company Stock Certificate to a Person other than provide an appropriate affidavit and indemnification obligation against any claim that may be made against the registered holder of the Shares surrenderedExchange Agent, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser Parent 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 circumstancewith respect to such Company Stock Certificate.
(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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the undistributed to holders of Company Stock Certificates and Book Entry Shares twelve months as of the date that is one year after the Effective Time date on which the Merger becomes effective shall be returned delivered to Parent, Parent upon demand, and any such holder holders of Company Stock Certificates or Book Entry Shares who has have not exchanged such theretofore surrendered their Company Stock Certificates or Book Entry Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time 2.07 shall thereafter look only to Parent for satisfaction of their claims for payment of the Merger Consideration in respect Offer Price.
(d) Each of such Shares without any interest thereon. Notwithstanding the foregoingExchange Agent, Parent and the Surviving Corporation shall not be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Common Stock such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and timely paid to the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Shares Company Common Stock or to any other Person with respect to the payment of the Offer Price, or for any amount paid cash amounts, delivered to a any public official pursuant to any applicable abandoned propertyproperty law, escheat law or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoother Legal Requirement.
Appears in 3 contracts
Sources: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Computershare Trust Company, N.A. (or trust company its successor) as the exchange agent (or such other nationally recognized exchange agent agreed to act as agent between the parties hereto) (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock (the Shares pursuant “Certificates”); provided, however, that any references herein to Section 3.03(a)“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock. Promptly after Prior to the Effective Time, Parent shall enter into an exchange agent agreement, in form and substance reasonably acceptable to the Company, with such Exchange Agent for the payment of the Merger Consideration in accordance with this Agreement. Immediately following the Effective Time, (and in any event no later than the first Business Day afterx) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make Exchange Agent, for the payment benefit of the aggregate Offer Price payable pursuant holders of shares of Company Common Stock issued and outstanding immediately prior to Section 2.01(d). As of the Effective Time, cash in an amount sufficient to pay the aggregate per share Merger Consideration (less the amount of cash directed by Parent to be deposited by the Company pursuant to clause (y)) and (y) at the written request of Parent at least three (3) Business Days prior to the Closing, the Company shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay Exchange Agent, for the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with benefit of the amount deposited pursuant holders of shares of Company Common Stock issued and outstanding immediately prior to the immediately preceding sentence, Effective Time an amount in cash as specified by Parent in such written notice in an amount not to exceed the Company’s then-available cash on hand (the “Payment Fund”). To the extent, following the deposits contemplated by the preceding clauses (x) and (y), such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall (or shall cause the Surviving Corporation to) 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 net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Merger Consideration to holders in respect of Shares in the Mergersuch shares of Company Common Stock.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
any event no later than three (ii3) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable Business Days after the Effective Time, upon surrender Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares held shares of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, Company Common Stock at the Company, Effective Time whose shares were converted into the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, right to receive 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).
2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (iiiwhich shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) No interest shall accrue or be paid on to the Exchange Agent) for use in such exchange. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration payable shall be entitled to holders of Shares receive the Merger Consideration in accordance with this Section 3.04(b) for the benefit respect of the holder thereofshares of Company Common Stock represented by a Certificate, within two (2) Business Days, upon (i) surrender to the Exchange Agent of a Certificate, together with a 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 shares of Company Common Stock, and, in each case, delivery to the Exchange Agent of such other documents as may reasonably be requested by the Exchange Agent. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the applicable Merger Consideration as contemplated by Section 3.03(a)cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(cd) All Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After 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 other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates 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 2.
(de) If any Certificate shall have been lost, stolen or destroyed, upon the holder’s compliance with the replacement requirements established by the Exchange Agent, including, if necessary, the posting by such Person of a bond, in such customary 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 will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock formerly represented by such Certificate, as contemplated under this Article 2.
(f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (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 3.04 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 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoConsideration.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint will enter into an agreement with a United States bank or trust company approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed) to act as agent (the “Depository Agent”) for purposes of 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 a payment agent (the “Paying Agent”) for holders of shares of Common Stock in connection with the purpose of exchanging for the Merger Consideration the Shares transactions contemplated by this Agreement. The Paying Agent agreement pursuant to Section 3.03(a)which Parent will appoint the Paying Agent will be in a form and substance reasonably acceptable to the Company. Promptly after (and in any event no later than At the first Business Day after) the Acceptance DateEffective Time, Parent shall will deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, in trust with the Paying Agent in a separate account for the benefit of holders of shares of Common Stock, cash in United States dollars sufficient to pay the aggregate Merger Consideration in exchange for all of the shares of Common Stock outstanding immediately prior to the Effective Time (other than the Excluded Shares, Dissenting Shares and Continuing Shares), payable pursuant to upon due surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.03(a3.2) (together with the amount deposited or Book-Entry Shares pursuant to the immediately preceding sentence, provisions of this Article III (such cash being referred to as the “Payment Fund”). If the Payment Fund is insufficient to make the payments contemplated by Section 2.6(a), Parent will, or will cause the Merger Sub or the Surviving Corporation to, promptly deposit additional funds with the Paying Agent in an amount sufficient to make such payments. The Payment Fund shall will not be used for any purpose other than to pay the Offer Price as expressly provided for in the Offer and the Merger Consideration to holders of Shares in the Mergerthis Agreement.
(b) Except As soon as provided in this Section 3.04(b), at reasonably practicable after the Effective TimeTime and in any event not later than the second Business Day following the Closing Date, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Surviving Corporation will instruct the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration mail to which such each holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shares 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 shall be deemed at any time after the Effective Time to represent only Common Stock converted into the right to receive the applicable portion of the Merger Consideration payable in respect thereof pursuant to Section 2.6 (i) a letter of transmittal, which will specify that delivery will be effected, and risk of loss and title will pass, only upon delivery of Certificates (or affidavits of loss in lieu thereof as contemplated by provided in Section 3.03(a)3.2) or Book-Entry Shares to the Paying Agent and will be in such form and have such other provisions as Parent and the Company may mutually agree and (ii) instructions for use in effecting the surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares in exchange for the portion of the Merger Consideration payable in respect thereof.
(ivc) Upon surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares 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 customarily be required by the Paying Agent, the holder of such Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares will be entitled to receive from the Payment Fund in exchange therefor an amount in cash equal to the product of (i) the number of shares represented by such holder’s properly surrendered Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares and (ii) the Per Share Merger Consideration (less any applicable withholding Taxes). No interest will be paid or accrued on any amount payable upon due surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) or Book-Entry Shares.
(d) If the any payment of any Merger Consideration is to be made to a Person other than the Person in whose name the a surrendered Certificate or Book-Entry Shares is registered on the stock transfer books of the Companyregistered, it shall will be a condition of such payment that the Person requesting such payment shall have paid all will pay any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the surrendered Certificate or Book-Entry Shares surrendered, or shall have established will establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe Merger Consideration is to be registered in the name of a Person other than the Person in whose name a surrendered Certificate or Book-Entry Shares is registered, Purchaser it will be a condition to the registration thereof that the surrendered Certificate or the Surviving Corporation shall have any liability Book-Entry Shares will be properly endorsed or otherwise be in proper form for the transfer and that the Person requesting such delivery of the Merger Consideration will pay to the Paying Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such Certificate or Book-Entry Shares or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable.
(ce) 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 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 2.6(d). From and after the Effective Time, the holders of Certificates and Book-Entry Shares 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. Notwithstanding anything to the contrary contained in this Agreement, the Surviving Corporation will be 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 the Company with respect to shares of Common Stock prior to the date of this Agreement and which remain unpaid at the Effective Time.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve months shares of Common Stock one year after the Effective Time shall will be returned to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares holder’s shares of Common Stock for the Per Share Merger Consideration in accordance with this Section 3.04 Article III prior to that time shall will thereafter look only to Parent the Surviving Corporation for payment delivery of the Per Share Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding holder’s shares of Common Stock.
(g) Neither Parent, the foregoing, Parent shall not Surviving Corporation nor the Paying 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 In the event any Certificate or Book-Entry Shares immediately have not been surrendered prior to the date as of which the Merger Consideration payable in respect of such time when the amounts Certificate or Book-Entry Shares would otherwise escheat to or otherwise become the property of any Governmental Authority shall becomeAuthority, Parent, the Surviving Corporation and the Paying Agent will comply with such Laws and the portion of the Merger Consideration otherwise payable upon the surrender of such Certificate or Book-Entry Shares will be treated for all purposes under this Agreement as having been paid to the extent permitted holder of the shares of Common Stock represented by Applicable Lawsuch Certificate or Book-Entry Shares.
(h) The Paying Agent will invest all cash included in the Payment Fund as directed by Parent; provided that any investment of such cash will be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the property United States of America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such instrument will have a maturity exceeding three months, and that no such investment or loss thereon will affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article III. Any interest and other income resulting from such investments will become part of the Payment Fund, and any amount in excess of the amounts payable under Section 3.1(a) will be promptly returned to Parent free and clear or the Surviving Corporation, as requested by Parent. To the extent that there are losses with respect to such investments, or the Payment Fund diminishes for other reasons below the level required to make prompt payments of any claims the Merger Consideration as contemplated hereby, Parent will promptly replace or interest restore, or will promptly cause to be replaced or restored, the portion of any Person previously entitled theretothe Payment Fund lost through investments or other events so as to ensure that the Payment Fund is, at all times, maintained at a level sufficient to make such payments.
Appears in 2 contracts
Sources: Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg), Agreement and Plan of Merger (Usg Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall will appoint a bank or trust company reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging Stock Certificates. Parent will make available to the Exchange Agent funds in amounts and at the times necessary for the prompt payment of the Merger Consideration in accordance with this Section 1.04 (such cash is referred to as the Shares pursuant to Section 3.03(a“Exchange Fund”). Promptly .
(b) Promptly, but in no event more than five business days, after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositwill send, or shall will cause the Exchange Agent to be depositedsend, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any each holder of Shares held a Stock Certificate a letter of transmittal and instructions for use in direct registry form through surrendering the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 Certificates for payment in accordance with this Section 3.04(b) for 1.04. The agreement with the benefit Exchange Agent will provide that, upon surrender to the Exchange Agent of such Stock Certificates, together with the letter of transmittal, duly executed and completed in accordance with the instructions thereto and such other documents as may be reasonably required by the Exchange Agent, the Exchange Agent will promptly pay to the persons entitled thereto, out of the holder thereof. Until exchanged as contemplated by this Exchange Fund, a check in the amount to which such persons are entitled pursuant to Section 3.04(b) or as otherwise contemplated in Section 3.051.03(b), each Share shall after giving effect to any required Tax withholdings, and such Stock Certificate will forthwith be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)cancelled.
(ivc) If the payment of any Merger Consideration cash is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedStock Certificates surrendered in exchange therefor, it will be a condition to such payment that the Stock Certificates so surrendered be properly endorsed or shall have established otherwise in proper form for transfer and that the Person requesting such payment pay to the Exchange Agent any transfer or other Taxes required as a result of such issuance or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have been paid or are not applicable. None For purposes of Parentthis Agreement, Purchaser “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust, or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a government or political subdivision or any circumstanceagency or instrumentality thereof.
(cd) 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 At and after the Effective Time, the stock transfer books of the Company will be closed, and there shall will be no further registration of transfers of Shares.shares of Common Stock outstanding prior to the Effective Time. If, at or after the Effective Time, Stock Certificates are presented to the Surviving Corporation for transfer or otherwise, they will be cancelled and exchanged in accordance with this Article I.
(de) Any portion of cash in the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve shares of Common Stock six months after the Effective Time shall will be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration surrendered his shares of Common Stock in accordance with this Section 3.04 1.04 prior to that time shall may thereafter look only to Parent for payment of Parent, as a general creditor thereof, to pay the Merger Consideration in respect of to which such Shares without any interest thereonholder is entitled. Notwithstanding the foregoing, Parent shall will not be liable to any holder of Shares shares of Common Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed .
(f) If any Stock Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Stock Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of Shares immediately prior a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawStock Certificate, the property Exchange Agent will pay the Merger Consideration payable in respect of Parent free and clear of any claims or interest of any Person previously entitled theretosuch Stock Certificate pursuant to this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Education Lending Group Inc), Merger Agreement (Cit Group Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Acquiom Financial LLC as the payment agent (or trust company such other nationally recognized payment agent agreed to between the parties) (the “Payment Agent”) to act as agent (for the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that Company’s stockholders who shall become entitled to receive the aggregate Offer Price funds pursuant to Section 2.01(d) and this Agreement, including as agent (the “Paying Agent”) for the purpose of exchanging surrendering, for the Per Share Merger Consideration Consideration, Certificates, and, as applicable for the Shares pursuant Warrant Payments, Warrant Certificates; provided, however, that any references herein to Section 3.03(a)“Certificates” or “Warrant Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock or Company Warrants, as applicable. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Payment Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the an amount deposited pursuant equal to the immediately preceding sentence, Aggregate Consideration (the “Payment Fund”) (less the portion of the Aggregate Consideration payable in respect of the Company RSU Awards and Company Stock Options, the amount of which shall be contributed by Parent to the Surviving Corporation and shall be payable by the Surviving Corporation through normal payroll processes, subject to applicable withholding in accordance with Section 2.09, not later than the first normal payroll date that occurs at least two (2) Business Days after the Closing Date). The Payment Fund shall not be used for any purpose other than purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Payment Agent, in connection with the conversion of shares of Company Common Stock into the right to pay receive the Offer Price in the Offer and the Per Share Merger Consideration in respect of each 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 Payment Agent to holders send, to each record holder of Shares shares of Company Common Stock as of immediately prior to the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the MergerCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.10) to the Payment Agent for use in such exchange).
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares right to receive the Per Share Merger Consideration shall not be required entitled to take any action with respect to receive the exchange of their Shares for the Per Share Merger Consideration.
Consideration (i) Any holder in respect of Shares held in direct registry form through each share of Company Common Stock represented by a Certificate, promptly, upon surrender to the Company’s transfer agentPayment Agent of such Certificate, Equiniti Trust Company, LLC (formerly known together with a duly completed and validly executed letter of transmittal and such other documents as American Stock Transfer & Trust Company, LLC) (may reasonably be requested by the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Payment 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Payment Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Payment Agent may reasonably request) in the case of a book-party intermediaries entry transfer of shares of Company Common Stock, and, in each case, delivery to ensure that the Paying Payment Agent will transmit to DTC or its nominees as promptly 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 and such other procedures documents as agreed may reasonably be requested by Parent, the Company, the Paying Payment Agent, DTC, DTC’s nominees and such other necessary third-party 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) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Per Share Merger Consideration as contemplated with respect to each share of Company Common Stock represented by Section 3.03(a)such Certificate. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Payment Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Payment Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parentpayable.
(d) Promptly following the Closing (and in any event within three (3) Business Days following the Closing), Purchaser or Parent and the Surviving Corporation shall have any liability will cause the Payment Agent to mail or otherwise provide to each Registered Holder (as of immediately prior to the Effective Time) of (x) a certificate or certificates that immediately prior to the Effective Time represented outstanding Company Warrants (the “Warrant Certificates”) or (y) uncertificated Company Warrants (the “Uncertificated Warrants”), (i) instructions for use in effecting the surrender of the Warrant Certificates or Uncertificated Warrants in exchange for the Warrant Payment payable in respect thereof pursuant to Section 2.07, and (ii) in the case of a holder of record of a Warrant Certificate, a customary form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Warrant Certificate (or affidavits of loss in lieu thereof)). Upon surrender of Warrant Certificates for cancellation to the Payment Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holders of such Warrant Certificates will be entitled to receive in exchange therefor an amount in cash equal to the Warrant Payment as set forth in Section 2.07, and the Warrant Certificates so surrendered will forthwith be cancelled. Upon receipt of an “agent’s message” by the Payment Agent (or such other evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of Uncertificated Warrants, the holders of such Uncertificated Warrants will be entitled to receive in exchange therefor an amount in cash equal to the Warrant Payment set forth in Section 2.07, and other similar Taxes described such Uncertificated Warrant so surrendered will be cancelled. The Payment Agent will accept such Warrant Certificates and Uncertificated Warrants upon compliance with such reasonable terms and conditions as the Payment Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be paid or accrued for the benefit of holders of the Warrant Certificates and Uncertificated Warrants on the Warrant Payment payable upon the surrender of such Warrant Certificates or Uncertificated Warrants pursuant to this Section 3.04(b)(iv) under any circumstance2.04(d).
(ce) All Merger Consideration cash amounts properly paid upon the transfer surrender of Shares Certificates or Warrant Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate or Warrant 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, or transfers of Company Warrants on the warrant register, of the Surviving Corporation. If, after the Effective Time, Certificates or Warrant Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration with respect to each share of Company Common Stock represented by such Certificate, or, if applicable, Warrant Payment represented by such Warrant Certificate, in accordance with the procedures set forth in this Article 2.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock or Company Warrants, as applicable, twelve (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 or Company Warrants (without prejudice to the terms of the Warrant Agreement) for the Per Share Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Merger Consideration cash to which they are otherwise entitled in respect accordance with the procedures set forth in this Article 2, without interest. None of such Shares without any interest thereon. Notwithstanding Parent, the foregoing, Parent Surviving Corporation or the Payment Agent shall not be liable to any holder of Shares shares of Company Common Stock or Company Warrants for any amount paid cash amounts properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when Applicable Law.
(g) Promptly following the amounts would otherwise escheat to or become property of any Governmental Authority Closing, the Surviving Corporation shall become, submit a written notice to the extent permitted by Applicable LawEscrow Agent, in a form reasonably acceptable to the property of Parent free and clear of any claims or interest of any Person previously entitled theretoEscrow Agent, certifying that the Merger has been consummated, in order for the Escrow Securities to be released to the Surviving Corporation for cancellation.
Appears in 2 contracts
Sources: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent (the “Depository Agent”) for purposes of 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 Paying Agent (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book‑Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, in each case, other than the Cancelled Shares and any Dissenting Shares. At or prior to the Closing, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant (other than the Company Equity Award Consideration) required to Section 3.03(a) be paid by the Paying Agent in accordance with this Agreement (together with the amount deposited pursuant such cash shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Exchange Fund”). In the event the Exchange Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Payment Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration (other than the Company Equity Award Consideration) contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will direct the Paying Agent to send to each holder of Shares shall record of a Certificate or Certificates or who holds their shares of Company Common Stock directly and not be required to take any action with respect in “street name” as of immediately prior to the exchange Effective Time (other than the Cancelled Shares and any shares in respect of their Shares Company Equity Awards and except for any Dissenting Shares) and each holder of Unexchanged Shares, to the extent such holder remains entitled to proceeds under the 2021 Merger Consideration.Agreement in accordance with its terms and applicable Law (each, an “LoT Holder”)
(i) Any holder a letter of Shares held in direct registry form through transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLCCertificate(s) (the “Company Transfer Agent”) shallor customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent), subject to compliance with customary procedures of the Paying Agent Agent) in such form as Parent and the Company Transfer may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, automatically upon and (ii) instructions for use in effecting the surrender of Certificates (or customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent), as applicable, in exchange for the Merger Consideration in such form as Parent and the Company may reasonably agree.
(c) Upon the surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof which is reasonably acceptable to Parent), as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or by the Paying Agent, the holder of the shares of Company Common Stock represented by such Certificate or otherwise constituting an LoT Holder as of immediately prior to the Effective Time, Time (other than any shares in respect of Company Equity Awards or Company Warrants) shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within three (3) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Shares so exchanged Certificates surrendered shall forthwith be forthwith canceled. Payment Upon receipt of an “agent’s message” by the applicable Merger Consideration with Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares held in “street name” and not in respect to of any LoT Holders, the holders of such Book-Entry Shares shall be made only entitled to receive the Merger Consideration pursuant to the Person in whose name such Shares are registered.
(ii) With respect to Shares heldprovisions of this Article III, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate transferred Book-Entry Shares so surrendered will be canceled. No holder of Book-Entry Shares will be required to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries provide a Certificate or an executed letter of transmittal to ensure that the Paying Agent will transmit in order to DTC or its nominees as promptly as practicable after receive the Effective Time, upon surrender payment that such holder is entitled to receive pursuant to this Article III. In the event of Shares held a transfer of record by DTC or its nominees ownership of Company Common Stock that is not registered in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the transfer records of the Company, payment of the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the appropriate amount of 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to may be made to a Person other than the Person in whose name the Certificate or Book‑Entry Share so surrendered Shares is registered on the stock transfer books of the Companyregistered, it subject to Section 3.02(e), if such Certificate shall be a condition of payment that the Person requesting such payment shall have paid properly endorsed or otherwise be in proper form for transfer (and accompanied by all transfer and other similar Taxes documents reasonably required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Paying Agent) or such Book‑Entry Share shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been be properly transferred. No interest shall be paid or are not applicable. None accrue on any cash payable upon surrender of Parent, Purchaser any Certificate 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 SharesBook‑Entry Share.
(d) Any portion Prior to the Effective Time, Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time (or such other time as may be mutually agreed in writing by Parent and the Company) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date or within two (2) Business Days thereof an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time (other than the Cancelled Shares and any shares in respect of Company Equity Awards and except for any Dissenting Shares) multiplied by the Merger Consideration made available to (such amount, the “DTC Payment”), and (ii) if the Closing occurs after such time on the Closing Date, the Paying Agent pursuant will transmit to Section 3.04(aDTC or its nominee on the third (3rd) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months Business Day 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 Closing Date an amount in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration cash 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, available funds equal to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoDTC Payment.
Appears in 2 contracts
Sources: Merger Agreement (Doma Holdings, Inc.), Merger Agreement (Doma Holdings, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Buyer shall appoint a bank or trust company to act as an exchange agent (the “Depository Exchange Agent”) for purposes reasonably acceptable to a majority of paying the aggregate Offer Price to independent directors of the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) Company for the purpose of exchanging Certificates for the Merger Consideration Consideration. At the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent Buyer shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price cash payments payable pursuant to Section 2.01(d2.2(a)(i). As Promptly after the Effective Time, Buyer will send, or cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Effective Time, Parent a letter of transmittal for use in such exchange (which shall depositspecify that the delivery shall be effected, or and risk of loss and title shall cause to be depositedpass, with only upon proper delivery of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Certificates to the immediately preceding sentenceExchange Agent), which letter shall be in such form as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than Company and Buyer may reasonably agree to pay use in effecting delivery of shares of Company Common Stock to the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerExchange Agent.
(b) Except Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, herein will be entitled to receivereceive the Merger Consideration in respect of the shares of Company Common Stock represented by such Certificate only upon surrender to the Exchange Agent of such Certificate. Until so surrendered, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible each such Certificate so converted shall, after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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) represent 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 shall be deemed at any time after the Effective Time to represent all purposes only the right to receive such Merger Consideration. No interest will be paid or accrued on any cash payable as part of the applicable Merger Consideration as contemplated by or in lieu of fractional shares pursuant to Section 3.03(a)2.6.
(ivc) If the payment of any Merger Consideration is to be made paid to the name of a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition to the registration or payment of payment such Merger Consideration that the Person requesting such payment surrendered Certificate shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, be properly endorsed or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancetransfer.
(cd) 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 Sharesshares of capital stock of the Company on the stock records of, or relating to, the Company. If, after the Effective Time, Certificates are presented to the Exchange Agent, the Surviving Corporation or Buyer, they shall be canceled and, if applicable, exchanged for the Merger Consideration payable in exchange therefor in accordance with the procedures and limitations set forth, in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.3(a) that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time shall be returned to Parent, upon demand, Buyer and any such holder who has not exchanged such Shares holder’s shares of Company Common Stock for the Merger Consideration payable in exchange therefor in accordance with this Section 3.04 2.3 prior to that time shall thereafter look only to Parent Buyer for payment delivery of the Merger Consideration in respect of such Shares holder’s shares without any interest thereon. Notwithstanding the foregoing, Parent Buyer shall not be liable to any holder of Shares Person for any amount paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws.
(f) The Exchange Agent shall invest any cash made available to the Exchange Agent pursuant to Section 2.3(a) as directed by Buyer on a daily basis in Treasury bills, Treasury notes, Treasury bonds or other short-term instruments guaranteed by the full faith and credit of the United States. Any amounts remaining unclaimed by holders of Shares immediately prior interest and other income resulting from such investments shall promptly be paid to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoBuyer.
Appears in 2 contracts
Sources: Merger Agreement (Saunders Acquisition Corp), Merger Agreement (Franklin Electronic Publishers Inc)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration Surviving Corporation shall cause to which such holder shall become entitled pursuant Section 3.03(a)be mailed to each record holder, and the Shares so exchanged shall be forthwith canceled. Payment as of the applicable Merger Consideration Effective Time, of certificates representing outstanding shares of Company Common Stock (“Company Certificates”) or shares of Company Common Stock represented by book-entry (“Company Book-Entry Shares”) (other than such holders who properly made a Cash Election, Stock Election or Combination Election with respect to such Company Certificates or Company Book-Entry Shares in accordance with Section 3.1 and other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be made only effected, and risk of loss and title to the Person in whose name such Shares are registered.
(ii) With respect to Shares heldCompany Certificates shall pass, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and only upon proper delivery of the Company shall cooperate Certificates to establish the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures with set forth in the Paying Agentletter of transmittal) and instructions for use in effecting the surrender of the Company Certificates or, DTCin the case of Company Book-Entry Shares, DTC’s nominees and the surrender of such other necessary third-party intermediaries to ensure that shares for payment of the Paying Agent will transmit to DTC or its nominees as promptly as practicable after Merger Consideration therefor. After the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures this Section 3.4(a) or in connection with a Form of Election delivered pursuant to Section 3.1(d), to the Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such letter of transmittal or a Form of Election pursuant to Section 3.1(d), duly completed and validly executed in accordance with the instructions thereto, and such other procedures documents as agreed by Parentmay be required pursuant to such instructions, the Company, Exchange Agent shall promptly deliver to the Paying Agent, DTC, DTC’s nominees and holder of such other necessary thirdCompany Certificate or Company Book-party intermediariesEntry Shares in exchange therefor, the Merger Consideration to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be issued in a name other than that in which the beneficial owners Company Certificate surrendered for exchange is registered, it shall be a condition of such Shares heldexchange that the Company Certificate so surrendered shall be properly endorsed, directly with signature guaranteed, or indirectly through DTCotherwise in proper form for transfer, and that the person requesting such exchange shall become entitled pursuant pay to Section 3.03(a).
(iii) No interest shall accrue Company or be paid on its transfer agent any transfer or other taxes required by reason of the issuance of the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a)3.1.
(ivb) If No dividends or other distributions with respect to shares of Acquiror Common Stock with a record date after the payment Effective Time shall be paid to the holder of any Merger Consideration is unsurrendered Company Certificate or Company Book-Entry Share with respect to the shares of Acquiror Common Stock to be made to a Person other than the Person received in whose name the surrendered Shares is registered on the stock transfer books respect thereof and no cash payment in lieu of the Company, it fractional shares shall be a condition paid to any such holder pursuant to Section 3.4(d), in each case until the surrender of payment that such Company Certificate or Company Book-Entry Share in accordance with this Article 3. Subject to the Person requesting such payment shall have paid all transfer and effect of applicable laws (including but not limited to applicable abandoned property, escheat or other similar Taxes required by reason laws), following surrender of any such Company Certificate or Company Book-Entry Share, there shall be paid to the payment of the Merger Consideration to a Person other than the registered holder of such Company Certificate or Company Book-Entry Share, without interest, (i) at the Shares surrenderedtime of such surrender, the amount of any cash payable in lieu of fractional shares of Acquiror Common Stock to which such holder is entitled pursuant to Section 3.4(d) and any dividends or shall have established other distributions with a record date after the Effective Time theretofore paid with respect to whole shares of Acquiror Common Stock to which such holder is entitled pursuant to this Agreement, and (ii) at the satisfaction appropriate payment date, any dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 circumstanceAcquiror Common Stock.
(c) All The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 (including any cash paid pursuant to Section 3.4(d)) shall be deemed to have been paid issued (and paid) in full satisfaction of all rights pertaining to the Shares formerly represented shares of Company Common Stock so exchanged.
(i) No new Company Certificates or scrip representing fractional shares of Acquiror Common Stock shall be issued in connection with the Merger and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Company after the Merger, and (ii) notwithstanding any other provision of this Agreement, each holder of shares of Company Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock (after taking into account all shares of Company Common Stock delivered by such Shares. After holder) shall receive, in lieu thereof, a cash payment (without interest rounded up to the nearest whole cent) determined by multiplying the fractional share interest to which such holder would otherwise be entitled by the closing price for a share of Acquiror Common Stock as reported on the NYSE Composite Transactions Tape on the trading day immediately preceding the date on which the Effective Time occurs.
(e) At any time following the date which is nine months after the Effective Time, there Acquiror shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any Acquiror Common Stock or funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Acquiror and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Acquiror, Surviving Corporation, any subsidiary or Affiliate of Acquiror or Surviving Corporation or the Exchange Agent 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 former holder of Shares Company Common Stock for any amount paid cash, shares of Acquiror Common Stock (or dividends or distributions in respect thereof) or cash in lieu of fractional shares of Acquiror Common Stock delivered to a public official officials pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(f) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Titan Corp), Merger Agreement (Lockheed Martin Corp)
Surrender and Payment. (a) Prior to the Acceptance Mailing Date, Parent CME Group shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent NYMEX Holdings (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging Certificates for the Merger Consideration. As soon as reasonably practicable after the Effective Time, but in no event more than seven (7) Business Days following the Effective Time, CME Group will send, or will cause the Exchange Agent to send, to each holder of record of shares of NYMEX Holdings Common Securities as of the Effective Time (and, to the extent commercially practicable, to make available for collection by hand if so elected by such holder of record), whose shares of NYMEX Holdings Common Securities were converted into the right to receive the Merger Consideration the Shares pursuant to Section 3.03(a1.9 (Effect on Capital Stock) and Section 1.10 (Election Procedures), a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as NYMEX Holdings and CME Group 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. Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent shall deposit, or CME Group shall cause to be deposited, deposited with the Depository Agent Exchange Agent, in trust for the benefit of the holders of shares of NYMEX Holdings Common Securities, shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form) and an amount of cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable be issued and paid pursuant to Section 2.01(d1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of Article I and Article II. As of Following the Effective Time, Parent shall depositCME Group agrees to make available to the Exchange Agent, or shall cause from time to be depositedtime as needed, with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends and other distributions pursuant to Section 3.03(a) (together 2.1(f). All cash and book-entry shares representing CME Group Class A Common Stock deposited with the amount deposited Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the immediately preceding sentenceMerger Consideration contemplated to be issued pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares) out of the “Payment Exchange Fund”). The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except Exchange Fund as directed by CME Group; provided in this Section 3.04(b), at the Effective Time, holders of Shares that no such investment or losses thereon shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 affect the Merger Consideration payable to holders of NYMEX Holdings Shares entitled to receive such consideration or cash in accordance with this Section 3.04(b) lieu of fractional interests and CME Group shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of NYMEX Holdings Shares entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, CME Group.
(b) Each holder of shares of NYMEX Holdings Common Securities that have been converted into the right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, 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 (i) the number of shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of CME Group Class A Common Stock, if any, that such holder has the right to receive and/or (ii) a check in the amount, if any, that such holder has the right to receive, including cash payable in lieu of fractional shares pursuant to Section 2.5 (No Fractional Shares) and dividends and other distributions payable pursuant to Section 2.1(f) (less any required Tax withholding), pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and this Article II. The Merger Consideration shall be paid as promptly as practicable (by 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 by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05so surrendered, each Share shall be deemed at any time such Certificate shall, after the Effective Time to Time, represent for all purposes only the right to receive the applicable such Merger Consideration as contemplated by Section 3.03(a)Consideration.
(ivc) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe 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, Purchaser it shall be a condition to the registration thereof that the surrendered Certificate shall be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cd) 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 Sharesshares of NYMEX Holdings Common Securities. From and after the Effective Time, the holders of Certificates representing shares of NYMEX Holdings Common Securities outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of NYMEX Holdings Common Securities except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent or CME Group, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in Article I and this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of NYMEX Holdings Common Securities one (1) year after the Effective Time shall be returned to ParentCME Group, upon demand, and any such holder who has not exchanged such Shares his or her shares of NYMEX Holdings Common Securities for the Merger Consideration in accordance with this Section 3.04 2.1 prior to that time shall thereafter look only to Parent CME Group for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of NYMEX Holdings Common Securities. Notwithstanding the foregoing, Parent neither CME Group, Merger Sub nor NYMEX Holdings shall not be liable to any holder of Shares shares of NYMEX Holdings Common Securities 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 NYMEX Holdings Common Securities immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEntity shall, to the extent permitted by Applicable applicable Law, become the property of Parent CME Group free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to shares of CME Group Class A Common Stock issued in the Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.1. 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 shares of CME Group Class A Common Stock, if any, issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of any such shares of CME Group Class A Common Stock with a record date after the Effective Time and a payment date on or prior to 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 CME Group Class A Common Stock 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 shares of CME Group Class A Common Stock, all shares of CME Group Class A Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(g) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.1 to pay for shares of NYMEX Holdings Common Securities for which appraisal rights shall have been perfected shall be returned to CME Group, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank authorize one or trust company more transfer agent(s) reasonably acceptable to Target to act as agent Exchange Agent hereunder (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price with respect to the holders of Shares that become entitled Merger. At or prior to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, deposit with the Paying Exchange Agent cash sufficient to pay for the benefit of the holders of Target Shares, for exchange in accordance with this Section 3.2 through the Exchange Agent, the aggregate amount of Merger Consideration payable pursuant to Section 3.03(a) (together in connection with the amount deposited pursuant to the immediately preceding sentenceMerger (collectively, the “Payment Exchange Fund”). The Payment Exchange Agent shall, pursuant to irrevocable instructions, deliver the applicable Merger Consideration in exchange for surrendered Stock Certificates pursuant to Sections 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(d), the Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, Parent shall cause the Merger Consideration Exchange Agent to send to each holder of record of Stock Certificates a letter of transmittal for use in such exchange (which such holder shall become entitled pursuant Section 3.03(aspecify 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 to the Exchange Agent), and instructions for use in effecting the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees Stock Certificates for payment therefor in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parentherewith (together, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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“Exchange Instructions”).
(iiic) 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 If any portion of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Target Shares surrenderedrepresented by the Stock Certificate(s) surrendered in exchange therefor, no such issuance or payment shall be made unless (i) the Stock Certificate(s) so surrendered have established 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 Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None of ParentFor this Agreement, Purchaser “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including any circumstancegovernmental or regulatory authority or agency (a “Governmental Authority”).
(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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Medstone International Inc/), Merger Agreement (Prime Medical Services Inc /Tx/)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d)Consideration. As of the Effective Time, Parent shall deposit, or shall cause to be deposited, deposit with the Paying Agent Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Section 2.03 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 2.02(a)(i) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the aggregate Merger Per Share Cash Consideration payable pursuant to Section 3.03(a2.02(a)(i). Parent agrees to make available directly or indirectly to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.03(f) and cash in lieu of any fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.07. Promptly after the Effective Time (together and in no event more than five Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of 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 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. All certificates (or evidence of shares in book-entry form) and cash deposited with the amount deposited Exchange Agent pursuant to the immediately preceding sentence, this Section 2.03 shall be referred to in this Agreement as the “Payment 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 Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except Exchange Fund as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed directed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and ; provided that no such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly investment or indirectly through DTC, losses thereon shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on affect the Merger Consideration payable to holders of Shares Company Common Stock entitled to receive such consideration or cash in accordance with this Section 3.04(b) lieu of fractional interests; provided, further, that, to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the holder thereofamount of any such losses. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share Any interest and other income resulting from such investments shall be deemed at any time after the Effective Time to represent only property of, and paid to, Parent upon termination of the Exchange Fund.
(b) Each holder of shares of Company 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 letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as contemplated the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the Company Common Stock represented by Section 3.03(a)a Certificate or Uncertificated Share. The shares of Parent Common 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 Common Stock or is otherwise required under Applicable Law.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and other or similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(cd) All Merger Consideration paid The stock transfer books of the Company shall be closed immediately 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, Time and there shall be no further registration of transfers of Sharesshares of Company Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged for the Merger Consideration, any dividends or other distributions to which the holders thereof are entitled pursuant to Section 2.03(f) and any cash in lieu of any fractional share of Parent Common Stock to which such holders are entitled pursuant to Section 2.07, in each case to the extent provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.03(a) that remains unclaimed by the holders of Shares twelve shares of Company Common Stock 12 months after the Effective Time shall be returned delivered to Parent or as otherwise instructed by 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 3.04 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration and any dividends and distributions (and cash in lieu of any fractional shares of Parent Common Stock) with respect thereto, in respect of such Shares 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 immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 2.07, 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 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent constituting part of the Merger Consideration have been registered, (i) promptly after 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 2.07 and the aggregate amount of all dividends or other distributions payable with respect to securities of Parent constituting part of the Merger Consideration with a record date after the Effective Time that were paid prior to the time of such surrender or transfer with respect to such securities of Parent, and (ii) at the appropriate payment date, the amount of all dividends or other distributions payable with respect to securities of Parent constituting part of the Merger Consideration with a record date after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Common Stock in connection with the Merger, and the filing of any related Tax returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 2 contracts
Sources: Merger Agreement (Aetna Inc /Pa/), Merger Agreement (Coventry Health Care Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a commercial bank or trust company that is reasonably satisfactory to act as agent the Company (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration to the Shares pursuant to Section 3.03(a). Promptly after (holders of Company Common Stock and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into an Exchange Agent Agreement with the Depository Agent cash sufficient Exchange Agent. At or prior to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Exchange Agent, for the benefit (from and after the Effective Time) of the holders of shares of Company Common Stock, for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock issuable as Stock Consideration and (ii) cash sufficient to pay the aggregate Merger Consideration Cash Consideration. In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of fractional shares payable pursuant to Section 3.03(a1.06(b) (together and to pay any dividends or other distributions payable pursuant to Section 1.03(f). All book-entry shares and cash deposited with the amount deposited Exchange Agent pursuant to the immediately preceding sentence, this Section 1.03(a) shall herewith be referred to as the “Payment Exchange Fund”. Promptly after the Effective Time (and in any event within two Business Days following the Closing Date). The Payment Fund , Parent shall not be used for any purpose other than send, or shall cause the Exchange Agent to pay send, to each Person who was, immediately prior to the Offer Price in the Offer and Effective Time, a holder of record of shares of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to holders Section 1.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in the Mergersuch payment.
(b) Except Each holder of 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 provided the Exchange Agent may reasonably request) in this Section 3.04(b)the case of a book-entry transfer of Uncertificated Shares, at the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time, holders of Shares shall not be required Time for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. 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 circumstancepayable.
(cd) All Merger Consideration paid The stock transfer books of the Company shall be closed immediately 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, Time and there shall be no further registration of transfers of Sharesshares of Company Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and converted into the right to receive only the Merger Consideration to the extent provided for, and in accordance with and subject to the procedures set forth, in this Article 1.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.03(a) that remains unclaimed by the holders of Shares twelve shares of Company Common Stock 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 Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.03 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. 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 immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 1.06(b), will be paid to the holders of any unsurrendered Certificates or Uncertificated Shares with respect to the shares of Parent Common Stock issuable upon surrender thereof until the holder of such Certificates or Uncertificated Shares shall surrender such Certificates or Uncertificated Shares in accordance with the terms of this Section 1.03. Subject to Applicable Law, promptly following the surrender of any such Certificates or Uncertificated Shares, the Exchange Agent shall deliver to the holders thereof, without interest, any dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such whole shares of Parent Common Stock and, at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
Surrender and Payment. (a) Prior to the Acceptance DateParent and Target shall authorize a transfer agent, Parent shall appoint a commercial bank or trust company reasonably acceptable to both parties to act as exchange agent under this Agreement (the “Depository Exchange Agent”) for purposes payment of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration upon surrender of Stock Certificates and Book Entry Shares representing the Shares pursuant Target Common Shares. At or prior to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent or Merger Sub shall deposit, or shall cause to be deposited, deposit with the Paying Exchange Agent for the benefit of the holders of Target Common Shares, cash sufficient in an amount equal to pay the aggregate amount of Merger Consideration payable to which holders of Target Common Shares shall be entitled at the Effective Time pursuant to Section 3.03(a) 4.1 in exchange for outstanding Target Common Shares (together with the amount deposited pursuant such amounts being hereinafter referred to the immediately preceding sentence, as the “Payment Exchange Fund”). The Payment Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration in exchange for surrendered Stock Certificates or Book Entry Shares pursuant to Section 4.1 out of the Exchange Fund. Except as contemplated by Section 4.2(d), the Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except as provided Promptly but in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
event within five (i5) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Business Days after the Effective Time, the Surviving Company shall cause the Exchange Agent to send to each holder of record of Stock Certificates or Book Entry Shares a letter of transmittal 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 or Book Entry Shares shall pass, only upon proper delivery of the Stock Certificates or Book Entry Shares to the Exchange Agent, and which shall be in a form reasonably acceptable to Target), and instructions for use in effecting the surrender of Stock Certificates or Book Entry Shares for payment therefor in accordance herewith. Upon proper surrender of a Stock Certificate or Book Entry Shares for exchange and cancellation to the Exchange Agent, together with such properly completed letter of transmittal, duly executed, the holder of such Stock Certificate or Book Entry Shares shall be entitled to receive in exchange therefor the amount of Merger Consideration to which such holder shall become entitled pursuant provided in Section 3.03(a4.1(a), and the Stock Certificate or Book Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registeredcancelled.
(iic) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 If any portion of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have issued or paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of Target Common Shares represented by the Stock Certificates or Book Entry Shares surrenderedsurrendered in exchange therefor, no such issuance or payment shall be made unless (i) the Stock Certificates or Book Entry Shares so surrendered have established 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 Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Target Common Shares twelve months one (1) year after the Effective Time shall be returned to ParentMerger Sub, upon demand, and any such holder who has not exchanged such holder’s Target Common Shares for the Merger Consideration in accordance with this Section 3.04 section prior to that time shall thereafter look only to Parent for payment the Surviving Company, as a general creditor thereof, to exchange such Target Common Shares or to pay amounts to which such holder is entitled pursuant to Section 4.1. If outstanding Target Common Shares are not surrendered prior to six (6) years after the Effective Time (or, in any particular case, prior to such earlier date on which any Merger Consideration issuable or payable upon the surrender of such Target Common Shares would otherwise escheat to or become the property of any Governmental Authority), the Merger Consideration in respect issuable or payable upon the surrender of such Target Common Shares without shall, to the extent permitted by applicable law, become the property of the Surviving Company, free and clear of all claims or interest of any interest thereonPerson previously entitled thereto. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, Target or the Surviving Company shall not be liable to any holder of Target Common Shares for any amount paid paid, or Merger Consideration delivered, to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed .
(e) If any Stock Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Stock Certificate is lost, stolen or destroyed and, if required by the Surviving Company, the posting by such Person of Shares immediately prior a bond in such reasonable amount as the Surviving Company may direct as indemnity against any claim that may be made against it with respect to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawStock Certificate, the property of Parent free and clear of any claims Exchange Agent will issue in exchange for such lost, stolen or interest of any Person previously entitled theretodestroyed Stock Certificate the Merger Consideration in respect thereof pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Alta Mesa Energy LLC), Merger Agreement (Meridian Resource Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Seagull shall appoint a bank or trust company an agent reasonably acceptable to act as agent OEI (the “Depository "Exchange Agent”) for purposes of 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 “Paying Agent”") for the purpose of exchanging Common Stock Certificates formerly representing OEI Common Stock. At or prior to the Effective Time, Seagull shall deposit with the Exchange Agent for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment benefit of the aggregate Offer Price payable pursuant to holders of OEI Common Stock, for exchange in accordance with this Section 2.01(d). As 3.2 through the Exchange Agent, (i) as of the Effective Time, Parent shall deposit, or shall cause certificates representing the Common Stock Merger Consideration to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable issued pursuant to Section 3.03(a3.1(a) and (together with the amount deposited ii) from time to time as necessary, cash to be paid in lieu of fractional shares pursuant to Section 3.4 (such certificates for the immediately preceding sentence, Common Stock Merger Consideration and such cash being hereinafter referred to as the “Payment "Exchange Fund”"). The Payment Exchange Agent shall, pursuant to irrevocable instructions, deliver the Common Stock Merger Consideration and cash in exchange for surrendered Common Stock Certificates formerly representing OEI Common Stock pursuant to Section 3.1 out of the Exchange Fund. Except as contemplated by Section 3.2(f), the Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, but in any event not later than five business days thereafter, Seagull will send, or will cause the Exchange Agent to send, to each holder of a Common Stock Certificate or Certificates that immediately prior to the Effective Time represented outstanding OEI Common Stock a letter of transmittal and instructions for use in effecting the exchange of such Common Stock Certificates for certificates representing the Common Stock Merger Consideration and, if applicable, cash in lieu of fractional shares. Provision also shall be made for holders of Common Stock Certificates to which procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Common Stock Certificates in exchange for the Common Stock Merger Consideration and, if applicable, cash.
(c) After the Effective Time, Common Stock Certificates shall represent the right, upon surrender thereof to the Exchange Agent, together with a duly executed and properly completed letter of transmittal relating thereto, to receive in exchange therefor that number of whole shares of Seagull Common Stock, and, if applicable, cash that such holder shall become entitled has the right to receive pursuant Section 3.03(a)to Sections 3.1 and 3.4 after giving effect to any required tax withholding, and the Shares Common Stock Certificate or Certificates so exchanged surrendered shall be forthwith canceled. Payment No interest will be paid or will accrue on any cash amount payable upon the surrender of the applicable Merger Consideration with respect to any such Shares shall be made only to the Person in whose name Common Stock Certificates. Until so surrendered, each such Shares are registered.
(ii) With respect to Shares heldCommon Stock Certificate shall, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, represent for all purposes only the right to receive, upon 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 Parentsurrender, the CompanySeagull Common Stock and, the Paying Agentif applicable, DTC, DTC’s nominees and such other necessary third-party 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 cash as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Article III.
(ivd) If the payment any shares of any Merger Consideration is Seagull Common Stock are to be made issued and/or cash to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedCommon Stock Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such issuance that the Common Stock Certificate or Certificates so surrendered shall have established be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay 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 satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None For purposes of Parentthis Agreement, Purchaser "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a governmental or political subdivision or any circumstanceagency or instrumentality thereof.
(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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a commercial bank or trust company that is reasonably satisfactory to act as agent the Company (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging Certificates or Uncertificated Shares for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into an Exchange Agent Agreement with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d)Exchange Agent. As of At the Effective Time, Parent shall deposit, or shall cause to be deposited, deposit with the Paying Agent Exchange Agent, for the benefit (from and after the Effective Time) of the holders of shares of Company Common Stock, for exchange in accordance with this Section through the Exchange Agent, cash sufficient to pay the aggregate Merger Consideration payable for all outstanding shares of Company Common Stock as of the Effective Time, except those described in Section 2.02(b). All cash deposited with the Exchange Agent pursuant to this Section 3.03(a2.03(a) shall herewith be referred to as the “Exchange Fund.” At the Effective Time Parent shall make available for hand pickup from the Exchange Agent and within two Business Days following the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration as of the Effective Time (together with i) a letter of transmittal in a form mutually agreed upon by Parent, the amount deposited pursuant Company and the Exchange Agent, 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 immediately preceding sentence, Exchange Agent (the “Payment FundLetter of Transmittal”) for use in such exchange and (ii) instructions for use in effecting the surrender of the Certificates or transfer of Uncertificated Shares in exchange for cash constituting the applicable portion of the Exchange Fund (including by means of hand-delivery). The Payment Fund shall not Letter of Transmittal and instructions will include an IRS Form W-9 or other applicable tax identification form which must be used for any purpose other than to pay completed and executed by each holder of Company Common Stock before such holder receives its portion of the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerExchange Fund.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, Consideration shall be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only upon (i) surrender to the Person in whose name such Shares are registered.
(ii) With respect to Shares heldExchange Agent of a Certificate, directly or indirectlytogether with a properly completed Letter of Transmittal, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.or
Appears in 1 contract
Sources: Merger Agreement
Surrender and Payment. (a) Prior Following the date hereof and prior to the Acceptance DateEffective Time, Parent shall Acquiror shall, at the Company’s sole cost and expense, appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger; provided, however, that Acquiror shall (i) afford the “Depository Agent”Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto; and (ii) for purposes of paying the aggregate Offer Price not appoint an Exchange Agent prior to the holders Effective Time in such a manner that will result in costs or expenses to the Company to be paid by the Company prior to the Effective Time or in the event that the Merger Agreement is terminated, in each case in clause (ii), absent the written consent of Shares that become the Company. Promptly after the appointment of the Exchange Agent, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock entitled to receive the aggregate Offer Price Merger Consideration pursuant to Section 2.01(d3.01 (other than the Assumed Options), at the Company’s sole cost and expense, a letter of transmittal in a customary form to be agreed to, reasonably and in good faith, by Acquiror and the Company (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as agent the case may be (the “Paying AgentCertificates”) ), to the extent such Company Stock is represented by the Certificates, in exchange for the purpose applicable portion of exchanging for the Merger Consideration the Shares (and any cash in lieu of fractional shares pursuant to Section 3.03(a3.01(c)) payable to such holder. Promptly after The Exchange Agent shall (and in any event no later than the first Business Day afterA) the Acceptance Date, Parent shall deposit, at or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of promptly following the Effective Time, Parent shall deposit, or shall cause issue to be deposited, with each holder of record of Company Stock entitled to receive a portion of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a3.01 (and any cash in lieu of fractional shares pursuant to Section 3.01(c)) that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the amount deposited pursuant instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the immediately preceding sentenceClosing Date, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures portion 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be made canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Merger Consideration pursuant to Section 3.01 that did not receive such portion of the Merger Consideration (and any cash in lieu of fractional shares pursuant to Section 3.01(c)) pursuant to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the Person extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in whose name accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Shares are registered.
Certificate (iior any Company Stock not represented by a Certificate) With the Merger Consideration (and pay any cash in lieu of fractional shares pursuant to Section 3.01(c)) with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver the Merger Consideration into which such Company Common Shares heldand Company Preferred Shares, directly or indirectlyas applicable, through the Depository Trust Company have been converted pursuant to Section 3.01(a) (“DTC”after giving effect to Section 3.01(e)) and Section 3.01(b), Parent respectively, as reflected in the Stockholder Ownership Allocation, electronically through book entry-delivery or, upon the written request of any Company Stockholder, in the form of an original stock certificate (which stock certificate for shares of Acquiror Common Stock issued in respect of Company Restricted Shares shall reflect the applicable restrictions) to the address set forth in such Company Stockholder’s Letter of Transmittal. Unless otherwise provided herein, no interest shall be paid or shall accrue on any Merger Consideration (and any cash in lieu of fractional shares pursuant to Section 3.01(c)) payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for the shares to be canceled pursuant to Section 3.01(e)) shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees be deemed from and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parentfor all purposes, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent evidence only the right to receive the applicable portion of the Merger Consideration (and any cash in lieu of fractional shares pursuant to Section 3.01(c)). If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled and exchanged as contemplated by provided in this Section 3.03(a3.04(a).
(ivb) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate (or any Company Stock not represented by a Certificate) is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate (or shall have established any Company Stock not represented by a Certificate) or establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(c) All Merger Consideration paid upon No dividends or other distributions declared or made after the transfer of Shares in accordance Effective Time with respect to the terms hereof Acquiror Common Stock with a record date after the Effective Time shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly holder of any unsurrendered Certificate (or Company Stock not represented by a Certificate) with respect to the Acquiror Common Stock issuable to such Sharesholder hereunder in consideration for the surrender of such Certificate (or Company Stock not represented by a Certificate) until the holder of such Certificate (or Company Stock not represented by a Certificate) shall surrender such Certificate (or Company Stock not represented by a Certificate). After Subject to the Effective Timeeffect of escheat, tax or other applicable Laws, following surrender of any such Certificate (or Company Stock not represented by a Certificate), there shall be no further registration paid to the holder of transfers the certificates representing shares of SharesAcquiror Common Stock issued in exchange therefor, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains remaining unclaimed by the holders of Shares twelve months Company Stockholders three (3) years after the Effective Time shall be returned to Parent(or such earlier date, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 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 such time when 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 Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as the Company 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 to be paid in respect of the Company Stock formerly represented by such Certificate in accordance with this Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Company and Parent. Promptly after the Effective Time on the Closing Date, Parent shall make available to the Paying Agent, as needed, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Acceptance Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(a3.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event no later than within two Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 send, to each holder of Shares at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, the form and substance of such letter of transmittal and instructions shall be reasonably agreed to by Parent and the Company and prepared prior to the Closing.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Certificate or for each such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicablepayable.
(d) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. None Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, Purchaser or the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall have any liability promptly provide additional cash funds to the Paying Agent for the transfer and other similar Taxes described benefit of the Company’s stockholders at the Effective Time in this Section 3.04(b)(iv) under any circumstancethe amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(ce) 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.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time Time, to the extent permitted by Applicable Law, 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 3.04 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, neither Parent nor any of its Affiliates 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 two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (AdvancePierre Foods Holdings, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank authorize one or trust company more transfer agent(s) reasonably acceptable to Company to act as exchange agent hereunder (the “Depository Exchange Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositwill deliver to Exchange Agent for the benefit of the holders of the outstanding Company Common Stock, or shall cause Company Warrants, Company Options and Company Notes a cash amount equal to be deposited, with the Paying applicable Merger Consideration. The aggregate amount of funds delivered to Exchange Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, sentence will be the “Payment Exchange Fund.”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, the Merger Consideration subject to which such holder shall become entitled pursuant Section 3.03(a3.6(d), Exchange Agent will promptly distribute from the Exchange Fund in exchange for a duly executed and the Shares so exchanged shall be forthwith canceled. Payment properly completed letter of the applicable Merger Consideration transmittal and surrendered certificates or instruments representing Company Instruments of any individual, corporation, limited liability company, partnership, association, trust or any other entity or organization, including a Governmental Authority (“Person”) (other than Dissenting Stockholders), an aggregate amount equal to (i) with respect to certificates representing Company Common Stock, the product of (A) the Per Share Consideration times (B) the number of shares of Company Common Stock represented by such Shares shall be made only certificate, (ii) with respect to the Person in whose name such Shares are registeredCompany Notes which have not been converted, the applicable Per Note Consideration, (iii) with respect to Company Warrants, the applicable Per Warrant Consideration, and (iv) with respect to the Company Options, the applicable Per Option Consideration.
(iic) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable Promptly after the Effective Time, upon surrender but in any event not later than three Business Days thereafter, Parent will, or instruct Exchange Agent to, send to each holder of Shares held Company Instruments a letter of record by DTC or its nominees transmittal and instructions for use in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, effecting the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners exchange of such Shares held, directly Company Instruments for the applicable Merger Consideration. “Business Day” means any date that is not a Saturday or indirectly through DTC, shall become entitled pursuant Sunday or other day on which banks are required or authorized by law to Section 3.03(a).
(iii) No interest shall accrue or be paid on closed in the Merger Consideration payable to city of New York. Provision also will be made for holders of Shares Company Instruments to procure 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 shall be deemed at any time person immediately after the Effective Time a letter of transmittal and instructions and to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person deliver in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months person immediately after the Effective Time shall be returned to Parent, upon demand, such letter of transmittal and any such holder who has not exchanged such Shares Company Instruments in exchange for the applicable Merger Consideration in accordance with this Section 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoConsideration.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company designated by Parent and reasonably acceptable to act as agent the Company (the “Depository Exchange Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, deposited with the Depository Agent Exchange Agent, in trust for the benefit of the holders of Company Common Stock and the Performance Units, certificates representing the shares of Parent Common Stock and an amount of cash in U.S. dollars sufficient to make the payment be issued and paid pursuant to Sections 2.1, 2.3 and 2.6(d), payable upon due surrender of the aggregate Offer Price payable Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) pursuant to Section 2.01(d)the provisions of this Article II. As of Following the Effective Time, Parent shall depositagrees to make available to the Exchange Agent, or shall cause from time to be depositedtime as needed, with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends and other distributions pursuant to Section 3.03(a) (together 2.2(f). Any cash and certificates representing Parent Common Stock deposited with the Exchange Agent (including the amount deposited of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to be paid pursuant to Section 2.3) shall be referred to in this Agreement as the immediately preceding sentence“Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 2.1 out of the Exchange Fund. Except as contemplated by Section 2.3, the “Payment Fund”). The Payment Exchange Fund shall not be used for any purpose other purpose. As soon as reasonably practicable after the Effective Time and in any event not later than the second business day following the Effective Time, Parent will cause the Exchange Agent to pay the Offer Price in the Offer and send to each holder of record of shares of Company Common Stock, whose Company Common Stock was converted into the Merger Consideration pursuant to holders Section 2.1, (i) a letter of transmittal 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 effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the MergerMerger Consideration. Exchange of any Book-Entry Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Except Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as provided may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.1 (after taking into account all shares of Company Common Stock then held by such holder) and (ii) a check in the amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 2.1 and this Article II, including cash payable in lieu of fractional shares pursuant to Section 3.04(b2.3 and dividends and other distributions pursuant to Section 2.2(f) (less any required Tax withholding). No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(ivc) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay any transfer and other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None of Parent, Purchaser or the Surviving Corporation shall have If 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.
(d) Any portion of the Merger Consideration made available is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) registration thereof that remains unclaimed by the holders of Shares twelve months after the Effective Time surrendered Certificate shall be returned to Parent, upon demand, properly endorsed or otherwise be in proper form for transfer and any that the Person requesting such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment delivery of the Merger Consideration in respect shall pay to the Exchange Agent any transfer Taxes required as a result of such Shares without any interest thereon. Notwithstanding registration in the foregoing, Parent shall not be liable to any name of a Person other than the registered holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat such Certificate or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, establish to the extent satisfaction of the Exchange Agent that such Tax has been paid or is not payable. For purposes of this Agreement, “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity, group (as such term is used in Section 13 of the Exchange Act) or organization, including a Governmental Authority, and any permitted by Applicable Law, the property successors and assigns of Parent free and clear of any claims or interest of any Person previously entitled theretosuch Person.
Appears in 1 contract
Sources: Merger Agreement (Washington Group International Inc)
Surrender and Payment. (a) Prior Following the date hereof and prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant appoint an exchange agent reasonably acceptable to the immediately preceding sentence, Company (the “Payment FundExchange Agent”). The Payment Fund shall not be used for any purpose other than ) to pay act as the Offer Price in the Offer and the Merger Consideration to holders of Shares exchange agent in the Merger.
(b) Except No later than the close of business on the tenth (10th) Business Day prior to the anticipated Closing Date, the Company shall have prepared an Ownership Allocation containing the Company Stockholders and Company Promised Optionholders and setting forth the allocation of Merger Consideration to be received by each Person enumerated therein, applying the methodology, assumptions, formulas and techniques set forth in Schedule 3.01. The parties hereto shall confer regarding the foregoing schedule no later than the fifth (5th) Business Day prior to the anticipated Closing Date, shall make such changes thereto as provided the parties hereto may mutually and in this Section 3.04(b)good faith agree, at and, subject to the agreement of the parties hereto, such schedule shall be the “Ownership Allocation” hereunder. In addition, the Company shall provide all information reasonably requested by the Exchange Agent in order to enable the Exchange Agent to open accounts for each Person enumerated in the Ownership Allocation.
(c) Promptly after the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Exchange Agent to pay mail to each holder of record of Company Stock entitled to receive Merger Consideration pursuant to Section 3.01 a letter of transmittal (which shall be in the form and deliver substance reasonably acceptable to Company) (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as promptly as possible the case may be (the “Certificates”), in exchange for the applicable portion of Merger Consideration payable to such holder. Promptly after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(aExchange Agent shall, as promptly as reasonably practicable after receipt of a Certificate (together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith), and issue to the Shares so exchanged shall be forthwith canceled. Payment holder of such Certificate the applicable Merger Consideration with respect to such Shares Certificate so surrendered and the Certificate shall forthwith be cancelled. The Exchange Agent shall deliver the Merger Consideration into which such shares of Company Common Stock have been converted pursuant to Section 3.01(a) (after giving effect to Section 3.01(c), Section 3.04, Section 3.05(a) and Section 3.06) as reflected in the Ownership Allocation, electronically through book entry-delivery or, upon the written request of any Company Stockholder, in the form of an original stock certificate to the address set forth in such Company Stockholder’s Letter of Transmittal. No interest shall be made only paid or shall accrue on any Merger Consideration payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Person in whose name such Shares are registered.
Effective Time represented shares of Company Stock (iiother than for Dissenting Shares) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent shall be deemed from and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parentfor all purposes, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only evidence the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books portion of the CompanyMerger Consideration. If after the Effective Time, any Certificate is presented to the Exchange Agent, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer cancelled and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described exchanged as provided 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 Shares3.07(c).
(d) Any portion of No dividends or other distributions declared or made after the Merger Consideration made available Effective Time with respect to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months Parent Common Stock with a record date after the Effective Time shall be returned paid to Parentthe holder of any unsurrendered Certificate with respect to the Parent Common Stock issuable to such holder hereunder in consideration for the surrender of such Certificate until the holder of such Certificate shall surrender such Certificate. Subject to the effect of escheat, upon demandtax or other applicable Laws, following surrender of any such Certificate, there shall be paid to the holder of the certificates representing shares of Parent Common Stock issued in exchange therefor, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Parent Common Stock, and any (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such holder who has not exchanged such Shares for the whole shares of Parent Common Stock.
(e) Any Merger Consideration in accordance with this Section 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 Company Stockholders two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto. None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any person in respect of any shares of Parent Common Stock delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar Law.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Company or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as Company 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 to be paid in respect of the shares of Company Stock formerly represented by such Certificate in accordance with this Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company nationally recognized financial institution reasonably acceptable to act as agent Parent and the Company (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Company Shares (the “Certificates”) or (ii) uncertificated Company Shares (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, which Parent shall deposit, appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositdeposit with or otherwise make available to the Exchange Agent, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.04(e), all or a portion of the Company Equity Award Consideration to all or a portion of the Employee Holders). Parent agrees to make available to the Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is entitled pursuant to Section 2.03(f). Promptly after the Effective Time (and in any event within five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to be depositedsend, with to each holder of Company Shares at the Paying Agent cash sufficient to pay Effective Time (other than the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the immediately preceding sentenceCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent and shall include customary provisions with respect to delivery of an “Payment Fund”)agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. The Payment Fund Such letter of transmittal shall not be used for any purpose other than to pay the Offer Price in the Offer form and have such provisions as Parent and the Merger Consideration to holders of Shares in the MergerCompany may reasonably agree.
(b) Except as provided in this Section 3.04(b), at Each holder of Company Shares that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration (i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and other than the Company Transfer Agent, automatically upon the Effective Time, Restricted Stock) shall be entitled to receive, and Parent shall cause upon (i) surrender to the Paying Exchange Agent to pay and deliver 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 promptly as possible after the Effective TimeExchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which payable for each such holder shall become entitled pursuant Section 3.03(a)Company Share represented by such Certificate or for each such Uncertificated Share. The Parent Shares constituting part of such Merger Consideration, and the Shares so exchanged at Parent’s option, shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares helduncertificated book-entry form, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 thereofunless a physical certificate is required under Applicable Law. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated and the right to receive any dividends or other distributions pursuant to Section 2.03(f). At the time set forth in Section 2.04(e), each Non-Employee Holder shall be entitled to receive such Non-Employee Holder’s Company Equity Award Consideration and, if determined by Parent pursuant to Section 3.03(a2.04(e), all or a portion of the Company Equity Award Consideration payable to all or a portion of the Employee Holders shall be paid pursuant to this Section 2.03. No interest shall be paid or shall accrue on any cash payable upon surrender of any Company Shares or upon the Company Equity Award Consideration.
(ivc) If any portion of the payment of any Merger Consideration (other than in respect of the Company Restricted Stock) is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all transfer and other similar pay to the Exchange Agent any Transfer Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent and Parent that such Taxes either have Transfer Tax has been paid or are is not applicablepayable. None The payment of Parentany transfer, Purchaser or the Surviving Corporation shall have any liability for the transfer documentary, sales, use, stamp, registration, value-added and other similar Taxes described and fees (including any penalties and interest) (“Transfer Taxes”) incurred solely by a holder of Company Shares in this Section 3.04(b)(iv) under connection with the Merger and any circumstanceother transactions contemplated hereby, and the filing of any related Tax Returns, shall be the sole responsibility of such holder.
(cd) 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 Company Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation 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 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Company Shares twelve that have been converted into the right to receive the Merger Consideration nine months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto pursuant to Section 2.03(f), in respect of such Company Shares without any interest thereonthereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, Parent shall not be liable to any holder of Company 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 Company Shares that have been converted into the right to receive the Merger Consideration two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) 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 2.06, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, 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 2.06 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 or transfer with respect to such securities.
Appears in 1 contract
Sources: Merger Agreement (Denbury Inc)
Surrender and Payment. (a) Prior Following the date hereof and prior to the Acceptance DateEffective Time, Parent shall Acquiror shall, at the Company’s sole cost and expense, appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger; provided, however, that Acquiror shall (i) afford the “Depository Agent”Company the opportunity to review any proposed Contract with the Exchange Agent prior to execution, and shall accept the Company’s reasonable comments thereto; and (ii) for purposes of paying the aggregate Offer Price not appoint an Exchange Agent prior to the holders Effective Time in such a manner that will result in costs or expenses to the Company to be paid by the Company prior to the Effective Time or in the event that the Merger Agreement is terminated, in each case in clause (ii), absent the written consent of the Company. Promptly after the appointment of the Exchange Agent, Acquiror shall cause the Exchange Agent to mail to each holder of record of Company Stock (including Former Service Provider Shares that become and after giving effect to the conversion of the AFC Convertible Note pursuant to Section 3.05 and the automatic exercise of the AFC Warrant pursuant to Section 3.06) entitled to receive the aggregate Offer Price Closing Date Merger Consideration pursuant to Section 2.01(d3.01 (other than the Base Acquiror Options and the Earnout Acquiror Options), at the Company’s sole cost and expense, a letter of transmittal (which shall be in the form and substance reasonably acceptable to the Company) (a “Letter of Transmittal”) and instructions for use in effecting the surrender of the certificates evidencing such Company Stock, in physical or electronic form, as agent the case may be (the “Paying AgentCertificates”) ), to the extent such Company Stock is represented by the Certificates, in exchange for the purpose applicable portion of exchanging for the Closing Date Merger Consideration the Shares pursuant payable to Section 3.03(a)such holder. Promptly after The Exchange Agent shall (and in any event no later than the first Business Day afterA) the Acceptance Date, Parent shall deposit, at or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of promptly following the Effective Time, Parent shall deposit, or shall cause issue to be deposited, with each holder of record of Company Stock entitled to receive a portion of the Paying Agent cash sufficient to pay the aggregate Closing Date Merger Consideration payable pursuant to Section 3.03(a3.01 that has delivered a Certificate (only to the extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in accordance with the amount deposited pursuant instructions thereto and customary tax forms that the Exchange Agent may reasonably require in connection therewith) at least three (3) Business Days prior to the immediately preceding sentenceClosing Date, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures portion 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Closing Date Merger Consideration with respect to such Shares Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be made canceled; and (B) following the Effective Time, with respect to any holder of record of Company Stock entitled to receive a portion of the Closing Date Merger Consideration pursuant to Section 3.01 that did not receive such portion of the Closing Date Merger Consideration pursuant to the preceding clause (A), no later than three (3) Business Days after receipt of a Certificate (only to the Person extent such Company Stock is represented by a Certificate) (together with a Letter of Transmittal duly completed and validly executed in whose name accordance with the instructions thereto and any customary tax forms that the Exchange Agent may reasonably require in connection therewith), issue to the holder of such Shares are registered.
Certificate (iior any Company Stock not represented by a Certificate) With the Closing Date Merger Consideration with respect to such Certificate (or any Company Stock not represented by a Certificate) so surrendered and the Certificate shall forthwith be canceled. The Exchange Agent shall deliver (x) the Stock Merger Consideration into which such Company Common Shares heldand Company Preferred Shares, directly or indirectlyas applicable, through the Depository Trust Company have been converted pursuant to Section 3.01(a) (“DTC”after giving effect to Section 3.01(d), Parent Section 3.05 and Section 3.06) and Section 3.01(b), respectively, as reflected in the Stockholder Ownership Allocation, electronically through book entry-delivery or, upon the written request of any Company Stockholder, in the form of an original stock certificate to the address set forth in such Company Stockholder’s Letter of Transmittal, (y) the Cash Merger Consideration payable to each Company Stockholder in accordance with the Ownership Allocation in immediately available funds in accordance with the payment instructions set forth in such Company Stockholder’s Letter of Transmittal and (z) the Liquidation Preference Amount to the Company shall cooperate to establish procedures Preferred Stockholder in immediately available funds in accordance with the Paying Agentpayment instructions set forth in such Company Preferred Stockholder’s Letter of Transmittal. Unless otherwise provided herein, DTCno interest shall be paid or shall accrue on any Closing Date Merger Consideration payable upon surrender of any Certificate (or any Company Stock not represented by a Certificate). Until so surrendered, DTC’s nominees each outstanding Certificate (or any Company Stock not represented by a Certificate) that prior to the Effective Time represented shares of Company Stock (other than for Dissenting Shares and such other necessary third-party intermediaries shares to ensure that the Paying Agent will transmit be canceled pursuant to DTC or its nominees as promptly as practicable Section 3.01(d)) shall be deemed from and after the Effective Time, upon 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 Parentfor all purposes, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent evidence only the right to receive the applicable portion of the Merger Consideration Consideration. If after the Effective Time, any Certificate (or any Company Stock not represented by a Certificate) is presented to the Exchange Agent, it shall be canceled and exchanged as contemplated by provided in this Section 3.03(a3.07(a).
(ivb) If any portion of the payment of any Closing Date Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate (or any Company Stock not represented by a Certificate) is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate (or shall have established any Company Stock not represented by a Certificate) or establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(c) All Merger Consideration paid upon No dividends or other distributions declared or made after the transfer of Shares in accordance Effective Time with respect to the terms hereof Acquiror Common Stock with a record date after the Effective Time shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly holder of any unsurrendered Certificate (or Company Stock not represented by a Certificate) with respect to the Acquiror Common Stock issuable to such Sharesholder hereunder in consideration for the surrender of such Certificate (or Company Stock not represented by a Certificate) until the holder of such Certificate (or Company Stock not represented by a Certificate) shall surrender such Certificate (or Company Stock not represented by a Certificate). After Subject to the Effective Timeeffect of escheat, tax or other applicable Laws, following surrender of any such Certificate (or Company Stock not represented by a Certificate), there shall be no further registration paid to the holder of transfers the certificates representing shares of SharesAcquiror Common Stock issued in exchange therefor, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such shares of Acquiror Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of Acquiror Common Stock.
(d) Any portion of the Closing Date Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains remaining unclaimed by the holders of Shares twelve months Company Stockholders three (3) years after the Effective Time shall be returned to Parent(or such earlier date, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 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 such time when 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 Acquiror free and clear of any claims or interest of any Person previously entitled thereto.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of loss and indemnity by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company or the Exchange Agent, the posting by such Person of a bond, in such reasonable amount as the Company 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 to be paid in respect of the Company Shares formerly represented by such Certificate in accordance with this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Acamar Partners Acquisition Corp.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Agribrands and Ralcorp shall cause Holding Company to appoint a bank or trust company to act an agent as agent designated by Agribrands and Ralcorp (the “Depository "Exchange Agent”) for purposes of 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 “Paying Agent”") for the purpose of exchanging the Certificates --------------- for the Merger Consideration the Shares pursuant to Section 3.03(a)Consideration. Promptly Immediately after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or Agribrands and Ralcorp shall cause Holding Company to be deposited, deposit with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant or make available to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and Exchange Agent the Merger Consideration to holders be paid in respect of Shares the shares (the "Exchange Fund"). If deposited, upon receipt, the Exchange Agent will invest --------------- the cash portion of the Exchange Fund in United States government securities maturing at the Merger.
Election Deadline or such other investments as Holding Company may direct. Promptly after the Effective Time, Holding Company will send, or will cause the Exchange Agent to send, (bA) Except as provided in this Section 3.04(b)to each record holder of shares of Agribrands Common Stock and Ralcorp Common Stock, at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) for use in such exchange, and (B) to each record holder of shares of Agribrands Common Stock and Ralcorp Common Stock, an election form (the "Election Form") providing for such holders of Shares ------------- to make a Stock Election or a Cash Election. Any Stock Election or Cash Election shall be validly made only if the Exchange Agent shall have received by 5:00 p.m., St. Louis time, on a date (the "Election Deadline") to be mutually ----------------- agreed upon by Agribrands and Ralcorp (which date shall not be required to take any action with respect to later than the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 twentieth Business Day after the Effective Time), an Election Form properly completed and executed (with the Merger Consideration signature or signatures thereon guaranteed to which the extent required by the Election Form) by such holder shall become entitled pursuant Section 3.03(a)accompanied by such holder's Certificates, and the Shares so exchanged shall be forthwith canceled. Payment or by an appropriate guarantee of delivery of such Certificates from a member of any registered national securities exchange or of the applicable Merger Consideration with respect to National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States as set forth in such Shares shall be Election Form. Any holder of Agribrands Common Stock or Ralcorp Common Stock who has made only an election by submitting an Election Form to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Exchange Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 irrevocably made such election. Any holder of all rights pertaining Agribrands Common Stock or Ralcorp Common Stock who fails to properly make the required election shall be deemed to have made a Stock Election with respect to the Shares formerly represented shares (other than Dissenting Shares) owned by such Shares. After the Effective Time, there shall be holder for which no further registration of transfers of Sharessuch election has been made.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ralcorp Holdings Inc /Mo)
Surrender and Payment. (a) At the Effective Time, all Securities outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each holder of a certificate formerly evidencing any Shares (each, a “Stock Certificate”) and each holder of record of an Option, a Warrant, an RSU, a Convertible Note or Restricted Stock shall cease to have any rights as a Stockholder, an Optionholder, a Warrantholder, an RSU Holder, a Noteholder or a holder of Restricted Stock, respectively.
(b) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant appoint a paying agent reasonably acceptable to the immediately preceding sentence, Company (“Paying Agent”) to act as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares paying agent in the Merger.
(bc) Except As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each holder of Shares (including, for the avoidance of doubt, each Noteholder and each holder of Restricted Stock) a letter of transmittal in substantially the form attached as Exhibit E (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Stock Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Paying Agent shall, no later than the later of (i) the Effective Time and (ii) promptly after receipt of a Stock Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to the holder of such Stock Certificate a cash amount as provided in Section 2.8(b) with respect to the Shares evidenced by such Stock Certificate so surrendered and the Stock Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Stock Certificate. Until so surrendered, each outstanding Stock Certificate that prior to the Effective Time evidenced shares of Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence only the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Stock Certificate is presented to Paying Agent, it shall be cancelled and exchanged as provided in this Section 3.04(b2.11(c).
(d) As promptly as reasonably practicable after obtaining the Requisite Company Vote, at Paying Agent shall mail to each Optionholder a Letter of Transmittal, and instructions for completing, executing and returning the Letter of Transmittal in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.9. With respect to each Optionholder, Paying Agent shall, no later than the later of (i) the Effective TimeTime or (ii) promptly after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Paying Agent may reasonably require in connection therewith, holders of Shares shall not be required pay to take any action such Optionholder a cash amount as provided in Section 2.9(a) with respect to the In-Money Options in respect of which the Letter of Transmittal was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Letter of Transmittal.
(e) As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each Warrantholder a Letter of Transmittal, and instructions for completing, executing and returning such Letter of Transmittal in exchange for the applicable portion of their the Merger Consideration pursuant to Section 2.9. Paying Agent shall, no later than the later of (i) the Effective Time and (ii) promptly after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to such Warrantholder a cash amount as provided in Section 2.9(b) with respect to the In-Money Warrants in respect of which the Letter of Transmittal was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Letter of Transmittal.
(f) As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each RSU Holder a Letter of Transmittal, and instructions for completing, executing and returning such Letter of Transmittal in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.9. Paying Agent shall, no later than the later of (i) the Effective Time or (ii) promptly after receipt of a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to such RSU Holder a cash amount as provided in Section 2.9(c). Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Letter of Transmittal.
(g) Each Securityholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly evidenced by such Stock Certificate and the cancelled In-Money Options, In-Money Warrants and RSUs, from the Escrow Amount, Net Working Capital Fund and Securityholders’ Representative Fund, as provided in this Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein, no interest shall be paid or accrued for the benefit of Securityholders on the Merger Consideration.
(ih) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Stock Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Stock Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment shall have paid all pay to Paying Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Stock Certificate or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(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.
(di) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months Securityholders one hundred eighty (180) days after the Effective Time shall be returned to Parent, upon demand, and any such holder Securityholders who has have not exchanged such Shares Stock Certificates and/or delivered a Letter of Transmittal for the Merger Consideration in accordance with this Section 3.04 2.11 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Amount shall be held and distributed to the Persons entitled thereof in respect accordance with the terms of such Shares without this Agreement, at the respective times and subject to the contingencies specified herein and any interest thereonportion of the Post-Closing Adjustment to which Securityholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares Securities 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 Securityholders three (3) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoto them.
(j) Any portion of the Merger Consideration made available to Paying Agent in respect of any Dissenting Shares shall be returned to Parent upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii)uncertificated Shares pursuant (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to Section 3.03(a)the Company and Parent. Promptly after the Effective Time on the Closing Date, Parent shall make available to the Paying Agent, as needed, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Acceptance Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event no later than within two Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 send, to each holder of Shares at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, the form and substance of such letter of transmittal and instructions shall be reasonably agreed to by Parent and the Company and prepared prior to the Closing.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Certificate or for each such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicablepayable.
(d) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. None Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, Purchaser or the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall have any liability promptly provide additional cash funds to the Paying Agent for the transfer and other similar Taxes described benefit of the Company’s stockholders at the Effective Time in this Section 3.04(b)(iv) under any circumstancethe amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(ce) 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.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(aSection 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time Time, to the extent permitted by Applicable Law, 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 3.04 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, neither Parent nor any of its Affiliates 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 two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
Surrender and Payment. (a) At the Effective Time, all Shares shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Company and shall have no rights as a stockholder of the Surviving Corporation and such Certificate shall forthwith be cancelled.
(b) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositappoint an Exchange Agent, the cost of which shall be borne fifty percent (50%) by Parent and fifty percent (50%) by the Company, reasonably acceptable to the Company to act as the Exchange Agent in the Merger (the “Exchange Agent”). Parent or the Exchange Agent shall cause deduct the foregoing amounts payable by the Company from any Additional Payments, prior to be depositeddistribution to the Equityholders in accordance with Section 2.13.
(c) Promptly following the Closing Date, the Exchange Agent shall, with the Paying reasonable assistance of the Equityholder Representative, as promptly as practical after receipt of any customary documents that the Exchange Agent cash sufficient may reasonably require, make an electronic book entry for the applicable number of Parent Merger Shares due to pay the aggregate Merger Consideration payable an Equityholder, if any, in each case, pursuant to Section 3.03(a) (together with the amount deposited pursuant 2.06. No interest shall be paid or shall accrue on any cash, stock or other consideration payable or issuable hereunder. Each Certificate that prior to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose Effective Time represented shares of Common Stock or Preferred Stock (other than to pay the Offer Price in the Offer Dissenting Shares) shall be deemed from and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration for all purposes, to which be cancelled and any such holder Certificate shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment not evidence any right to receive any portion of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent consideration under Section 2.06 and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable Section 2.12. If after the Effective Time, upon 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, any Certificate is presented to the Company, the Paying Exchange Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the no Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, consideration shall become entitled pursuant to Section 3.03(a)be exchanged therefor.
(iiid) 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 If any portion of the holder thereof. Until exchanged as contemplated by this applicable consideration under Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration 2.06 is to be made paid to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books and records of the CompanyCompany at the Effective Time, it shall be a condition of to such payment that (i) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser payable and (ii) the Exchange Agent may require the Person 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 circumstancesuch Person’s purported representatives to furnish supporting documentation evidencing such Person’s or representative’s authority to act and/or to furnish a medallion signature guarantee.
(ce) All Promptly following the date of this Agreement, the Company shall deliver to each Optionholder any required notices regarding the Merger Consideration paid and Agreement to Exercise Option in substantially the form attached hereto as Exhibit E (an “Option Exercise Agreement”). Each Option that is not exercised prior to the Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Option Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(d) and in accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(f) Promptly following the date of this Agreement, the Company shall deliver to each Warrantholder any required notices regarding the Merger and Agreement to Exercise Warrant in substantially the form attached hereto as Exhibit F (a “Warrant Exercise Agreement”). Each Warrant that is not exercised prior to the Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Warrant Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(e) and in accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(g) Any portion of the Parent Merger Shares that remains unclaimed six (6) months or more after the Effective Time (or, in the case of any payment of Additional Payments, six (6) months or more after the first payment of such amounts) shall be returned to the Equityholder Representative, upon demand, and any such Equityholder shall look only to the transfer Exchange Agent and the Equityholder Representative for payment of Shares the applicable consideration under Section 2.06; provided, that any funds payable from the Equityholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining this Agreement at the respective times and subject to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharescontingencies specified herein and therein.
(dh) Any portion of the Merger Consideration applicable consideration under Section 2.06 made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and in respect of any interest or other income earned thereon) that remains unclaimed by the holders of Dissenting Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for .
(i) Notwithstanding anything to the Merger Consideration in accordance with this Section 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 foregoingcontrary contained here, Parent and the Surviving Corporation and their Affiliates shall not be liable to any holder of Shares Certificates for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders any Equityholder two (2) years after the Effective Time (or, in the case of Shares Additional Payments, if any, two (2) years after the first payment of such amounts) (or such earlier date, immediately prior to such time when 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 free and clear of any claims or interest of any Person previously entitled thereto. The Exchange Agent shall deliver any such funds to Parent within fifteen (15) Business Days after the applicable two (2)-year anniversary by wire transfer or immediately available funds.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Depository Agent”"DISBURSING AGENT") for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent containing customary terms, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 2.01(d). As of the Effective Time3.02, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Paying Disbursing Agent cash sufficient in an aggregate amount necessary to pay make the aggregate Merger Consideration payable payments pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration 3.02 to holders of Shares in (such amounts being hereinafter referred to as the Merger"EXCHANGE FUND").
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, the Merger Consideration Surviving Corporation shall cause the Disbursing Agent to mail to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which such holder shall become entitled pursuant Section 3.03(aimmediately prior to the Effective Time represented Shares (the "CERTIFICATES"), and the whose Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only were converted into the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) 3.02, a form of letter of transmittal (and any interest or other income earned thereon) which shall specify that remains unclaimed by the holders of Shares twelve months after the Effective Time delivery shall be returned to Parent, upon demandeffected, and any such holder who has not exchanged such Shares risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and instructions for use in effecting the Merger Consideration surrender of the Certificates in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent exchange for payment of the Merger Consideration in respect Consideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Shares without any interest thereon. Notwithstanding Certificate shall be paid promptly in exchange therefor cash in an amount equal to the foregoing, Parent shall not be liable to any holder product of the number of Shares for any amount represented by such Certificate multiplied by the Merger Consideration, and such Certificate shall forthwith be canceled. No interest will be paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders accrued on the cash payable upon the surrender of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoCertificates.
Appears in 1 contract
Sources: Merger Agreement (Ricoh Co LTD)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Surviving Corporation shall cause the Exchange Agent to mail to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock ("Company Certificates") or shares of Company Common Stock represented by book-entry ("Company Book-Entry Shares") (in Merger Agreement each case, other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) (the "Letter of Transmittal") and instructions for use in effecting the surrender of the Company Certificates or, in the case of Company Book-Entry Shares, the surrender of such shares for payment of the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceledtherefor. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after After the Effective Time, upon 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, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 3.4(a), to the benefit Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Exchange Agent shall promptly deliver to the holder of such Company Certificate or Company Book-Entry Shares in exchange therefor, the Merger Consideration (without interest), to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to the Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid in a name other than that in which the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Company or its transfer agent any transfer or other taxes required by reason of the payment of the Merger Consideration in a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a)3.1.
(ivb) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After shares of Company Common Stock so exchanged.
(c) At any time following the date which is nine months after the Effective Time, there Parent shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Parent, the Surviving Corporation, any Subsidiary or Affiliate of Parent or the Surviving Corporation or the Exchange Merger Agreement Agent 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 former holder of Shares Company Common Stock for any amount paid cash delivered to a public official officials pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an exchange agent (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) Company for the purpose of exchanging Certificates or Book Entry Shares representing Company Shares for the applicable Merger Consideration Consideration. Immediately upon completion of the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance DateMerger, Parent shall deposit, or shall cause to be deposited, deposit with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective TimeExchange Agent, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders be paid in accordance with this Article 2. Promptly after the Effective Time and, in any event, not later than the third Business Day following the Closing Date, the Surviving Corporation shall send, or shall instruct the Exchange Agent to send, to each record holder of Company Shares at the Effective Time a letter of transmittal, which shall be in a form reasonably acceptable to Company, and instructions (which shall specify that the Mergerdelivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or Book Entry Shares to the Exchange Agent) for use in such exchange.
(b) Except Each holder of Company Shares shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented upon surrender to the Exchange Agent of a Certificate or Certificates (or affidavits of loss in lieu thereof (and bond, if required) as provided in this Section 3.04(b)2.07 or, in the case of Book Entry Shares, upon adherence to the procedures as set forth in the letter of transmittal) representing such shares, together with a properly completed letter of transmittal. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.
(c) Promptly after the Effective Time and, in any event, not later than the third Business Day following the Closing Date, the Surviving Corporation shall send, or shall instruct the Exchange Agent to send, to each record holder of a Company Stock Option or a Company Restricted Stock Award in respect of which a cash payment is payable at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the CompanyTime under Section 2.04 a notice summarizing such holder’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration rights under this Agreement with respect to such Shares shall be made only award and setting forth any procedures that such holder must follow to the Person in whose name such Shares are registeredreceive payment.
(iid) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 If any portion of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the Book Entry Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such book entry shall be properly transferred, and the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Book Entry Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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 circumstancepayable.
(ce) All The payment of the applicable Merger Consideration paid upon the transfer surrender of Certificates or Book Entry Shares in accordance with the terms hereof shall be deemed to have been paid payment in full satisfaction of all rights pertaining to the Shares Company Common Stock formerly represented by such SharesCertificate or Book Entry Share. After From and after the Effective Time, there shall be no further registration of transfers of SharesCompany Shares on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger 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 deposited with the Paying Exchange Agent pursuant to Section 3.04(a) Article 2 (and any interest or other income earned thereon) that remains unclaimed by the holders of Company Shares twelve six months after the Effective Time shall be returned to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.04 2.02 prior to that time shall thereafter look to Surviving Corporation only as general creditors thereof with respect to Parent for payment of the any Merger Consideration in respect of such Company Shares without any interest thereon. Notwithstanding the foregoing, Parent Surviving Corporation 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 immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent Surviving Corporation or its designee free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Surviving Corporation shall cause the Exchange Agent to mail to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock ("Company Certificates") or shares of Company Common Stock represented by book-entry ("Company Book-Entry Shares") (in each case, other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) (the "Letter of Transmittal") and instructions for use in effecting the surrender of the Company Certificates or, in the case of Company Book-Entry Shares, the surrender of such shares for payment of the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceledtherefor. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after After the Effective Time, upon 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, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 3.4(a), to the benefit Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Exchange Agent shall promptly deliver to the holder of such Company Certificate or Company Book-Entry Shares in exchange therefor, the Merger Consideration (without interest), to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to the Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be paid in a name other than that in which the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Company or its transfer agent any transfer or other taxes required by reason of the payment of the Merger Consideration in a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a)3.1.
(ivb) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After shares of Company Common Stock so exchanged.
(c) At any time following the date which is nine months after the Effective Time, there Parent shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Parent, the Surviving Corporation, any Subsidiary or Affiliate of Parent or the Surviving Corporation or the Exchange Agent 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 former holder of Shares Company Common Stock for any amount paid cash delivered to a public official officials pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company designated by Parent and reasonably acceptable to act as agent the Company (the “Depository Exchange Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, deposited with the Depository Agent Exchange Agent, in trust for the benefit of the holders of Company Common Stock and the Performance Units, certificates representing the shares of Parent Common Stock and an amount of cash in U.S. dollars sufficient to make the payment be issued and paid pursuant to Sections 2.1, 2.3 and 2.6(d), payable upon due surrender of the aggregate Offer Price payable Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) pursuant to Section 2.01(d)the provisions of this Article II. As of Following the Effective Time, Parent shall depositagrees to make available to the Exchange Agent, or shall cause from time to be depositedtime as needed, with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends and other distributions pursuant to Section 3.03(a) (together 2.2(f). Any cash and certificates representing Parent Common Stock deposited with the Exchange Agent (including the amount deposited of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to be paid pursuant to Section 2.3) shall be referred to in this Agreement as the immediately preceding sentence“Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 2.1 out of the Exchange Fund. Except as contemplated by Section 2.3, the “Payment Fund”). The Payment Exchange Fund shall not be used for any purpose other purpose. As soon as reasonably practicable after the Effective Time and in any event not later than the second business day following the Effective Time, Parent will cause the Exchange Agent to pay the Offer Price in the Offer and send to each holder of record of shares of Company Common Stock, whose Company Common Stock was converted into the Merger Consideration pursuant to holders Section 2.1, (i) a letter of transmittal 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 effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the MergerMerger Consideration. Exchange of any Book-Entry Shares shall be effected in accordance with Parent’s customary procedures with respect to securities represented by book entry.
(b) Except Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent, together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as provided may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.1 (after taking into account all shares of Company Common Stock then held by such holder) and (ii) a check in the amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 2.1 and this Article II, including cash payable in lieu of fractional shares pursuant to Section 3.04(b2.3 and dividends and other distributions pursuant to Section 2.2(f) (less any required Tax withholding). No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(ivc) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay any transfer and other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None of Parent, Purchaser or the Surviving Corporation shall have If 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.
(d) Any portion of the Merger Consideration made available is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) registration thereof that remains unclaimed by the holders of Shares twelve months after the Effective Time surrendered Certificate shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration properly endorsed or otherwise be in accordance with this Section 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.4
Appears in 1 contract
Sources: Merger Agreement (Urs Corp /New/)
Surrender and Payment. (a) At the Effective Time, all Securities outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each holder of a certificate formerly evidencing any Shares (each, a “Stock Certificate”) and each holder of record of an Option, a Warrant, an RSU, a Convertible Note or Restricted Stock shall cease to have any rights as a Stockholder, an Optionholder, a Warrantholder, an RSU Holder, a Noteholder or a holder of Restricted Stock, respectively.
(b) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant appoint a paying agent reasonably acceptable to the immediately preceding sentence, Company (“Paying Agent”) to act as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares paying agent in the Merger.
(bc) Except As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each holder of Shares (including, for the avoidance of doubt, each Noteholder and each holder of Restricted Stock) a letter of transmittal in substantially the form attached as Exhibit E (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Stock Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Paying Agent shall, no later than the later of (i) the Effective Time and (ii) promptly after receipt of a Stock Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to the holder of such Stock Certificate a cash amount as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action 2.8(b) with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American evidenced by such Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent Certificate so surrendered and the Company Transfer AgentStock Certificate shall forthwith be cancelled. Unless otherwise provided herein, automatically no interest shall be paid or shall accrue on any cash payable upon surrender of any Stock Certificate. Until so surrendered, each outstanding Stock Certificate that prior to the Effective Time, Time evidenced shares of Company Common Stock (other than Dissenting Shares) shall be entitled to receive, deemed from and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration for all purposes, to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent evidence only the right to receive the applicable portion of the Merger Consideration as contemplated by provided in Section 3.03(a2.8(b).
(iv) . If after the payment of Effective Time, any Merger Consideration Stock Certificate is presented to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the CompanyPaying Agent, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer cancelled and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described exchanged as provided 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 Shares2.11(c).
(d) Any As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to each Optionholder a Letter of Transmittal, and instructions for completing, executing and returning the Letter of Transmittal in exchange for the applicable portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a2.9. With respect to each Optionholder, Paying Agent shall, no later than the later of (i) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, or (ii) promptly after receipt of a Letter of Transmittal duly completed and any such holder who has not exchanged such Shares for the Merger Consideration validly executed in accordance with this the instructions thereto and any other customary documents that Paying Agent may reasonably require in connection therewith, pay to such Optionholder a cash amount as provided in Section 3.04 prior 2.9(a) with respect to that time the In-Money Options in respect of which the Letter of Transmittal was delivered. Unless otherwise provided herein, no interest shall thereafter look only be paid or shall accrue on any cash payable upon delivery of any Letter of Transmittal.
(e) As promptly as reasonably practicable after obtaining the Requisite Company Vote, Paying Agent shall mail to Parent each Warrantholder a Letter of Transmittal, and instructions for payment completing, executing and returning such Letter of Transmittal in exchange for the applicable portion 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoSection 2.
Appears in 1 contract
Sources: Merger Agreement
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent CBC shall appoint a bank or trust company an agent reasonably acceptable to act as agent Cadence (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of: (i) exchanging the Per Share Common Stock Consideration for certificates representing shares of Cadence Common Stock or uncertificated shares of Cadence Common Stock; and (ii) exchanging the Per Share Preferred Stock Consideration for certificates representing shares of Cadence Preferred Stock or uncertificated shares of Cadence Preferred Stock. At or as needed promptly following the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent CBC shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient Continuing Corporation to make available to the payment Exchange Agent funds equal to the aggregate of the aggregate Offer Price payable pursuant Per Share Common Stock Consideration and the Per Share Preferred Stock Consideration.
(b) As soon as reasonably practicable after the Effective Time (but not later than two Business Days thereafter), the Continuing Corporation shall cause the Exchange Agent to Section 2.01(d)mail to each record holder of shares of Cadence Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the shares of Cadence Common Stock and Cadence Preferred Stock shall pass, only upon proper delivery of stock certificates or transfer of the uncertificated shares to the Exchange Agent) for use in such exchange. As Each record holder of shares of Cadence Stock that have been converted into the right to receive the Per Share Common Stock Consideration or the Per Share Preferred Stock Consideration, as applicable, shall be entitled to receive, upon (i) surrender to the Exchange Agent (or, subsequent to the first anniversary of the Effective Time, Parent shall depositthe Continuing Corporation) of the applicable share certificate, together with a properly completed and executed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of uncertificated shares, the Per Share Common Stock Consideration or the Per Share Preferred Stock Consideration, as applicable (subject to any applicable withholding Tax) in respect of the Cadence Common Stock or Cadence Preferred Stock represented by a certificate or uncertificated share. Until so surrendered or transferred, as the case may be, any certificate, or uncertificated share, of Cadence Common Stock or Cadence Preferred Stock shall cause represent after the Effective Time for all purposes only the right to receive, in accordance with the terms hereof and without interest, the applicable Per Share Common Stock Consideration or the Per Share Preferred Stock Consideration. If any portion of applicable consideration is to be depositedpaid to a person other than the person in whose name a surrendered certificate or uncertificated share is registered, with it shall be a condition to such payment that (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such uncertificated share shall be properly transferred, in each case, as determined by the Paying Exchange Agent cash sufficient to and as set forth in the letter of transmittal and related instructions and (ii) the person requesting such payment shall pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for Exchange Agent any purpose 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 pay the Offer Price in satisfaction of the Offer Exchange Agent and the Merger Consideration to holders of Shares in the MergerContinuing Corporation that such Tax has been paid or is not payable.
(bc) Except as provided in this Section 3.04(b), at After the Effective Time, holders shares of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Cadence Common Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares no longer outstanding and shall be made only automatically canceled and shall cease to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent exist and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender thereafter by operation 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, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to Agreement represent only the right to receive receive, in the applicable Merger Consideration case of the Cadence Common Stock, the Per Share Common Stock Consideration, and, in the case of the Cadence Preferred Stock, the Per Share Preferred Stock Consideration, all as contemplated by provided for in Section 3.03(a).
(iv) If 1.5, and the payment stock transfer ledger of any Merger Consideration is to Cadence shall be made to a Person other than the Person in whose name the surrendered Shares is registered closed and there shall be no transfers on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason Cadence of the payment shares of the Merger Consideration Cadence Stock which were outstanding immediately prior to a Person such time (other than the registered holder to settle transfers of the Shares surrendered, or shall have established Cadence Stock that occurred prior to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicableEffective Time). None of ParentIf, 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 after the Effective Time, there certificates representing Cadence Common Stock are presented to CBC, they shall be no further registration of transfers of Sharespromptly canceled and exchanged for the applicable consideration as provided in this Section 1.7.
(d) Any portion of the Merger Per Share Common Stock Consideration or Per Share Preferred Stock Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a1.7(a) (and including any interest or other income earned thereonproceeds of any investments thereof) that remains unclaimed by the holders of Shares Cadence Stock twelve months after the Effective Time shall be returned to ParentCBC, upon demand, and any such holder who has not exchanged such Shares shares of Cadence Common Stock or Cadence Preferred Stock for the Merger Per Share Common Stock Consideration or Per Share Preferred Stock Consideration, as applicable, in accordance with this Section 3.04 1.7 prior to that time shall thereafter look only to Parent the Continuing Corporation (subject to abandoned property, escheat or other similar applicable laws) for payment of the Merger Consideration in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent neither CBC, Cadence, or any other person shall not be liable to any former holder of Shares shares of Cadence Stock for any amount paid cash properly delivered to a public governmental official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Buyer shall (i) appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of 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 “Paying Exchange Agent”) for the purpose of exchanging certificates representing Company Stock for the Merger Consideration the Shares pursuant to set forth in Section 3.03(a). Promptly after 2.7 and (and in any event no later than the first Business Day afterii) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, irrevocably deposit with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Initial Merger Consideration to holders be paid in respect of Shares in the Mergershares of Company Stock.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly As soon as practicable after the Effective Time, Buyer shall send to each holder of a certificate or certificates which immediately prior to the Effective Time evidenced outstanding shares of Company Stock (the “Certificates”), a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon surrender proper delivery of Shares held the Certificates representing shares of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, Company Stock to the Company, the Paying Exchange Agent, DTC, DTC’s nominees and such other necessary third-party 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).
(iiic) No interest shall accrue Company Stockholders, upon surrender to the Exchange Agent of a Certificate or Certificates representing such shares of Company Stock, together with a properly completed letter of transmittal covering such shares of Company Stock, will be paid on entitled to receive the Merger Consideration payable to holders in respect of Shares such shares of Company Stock on the terms provided for in accordance with this Section 3.04(b) for the benefit of the holder thereofAgreement. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05so surrendered, each Share shall be deemed at any time Certificate representing shares of Company Stock that have been converted into the right to receive the Merger Consideration shall, after the Effective Time to Time, represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration.
(ivd) If any portion of the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of Company Stock represented by the Shares surrenderedCertificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall have established be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Company Stock or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. 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 circumstancepayable.
(ce) 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 Sharesshares of Company Stock. If, after the Effective Time, Certificates representing shares of Company Stock are presented to the Surviving Corporation, they shall be cancelled and exchanged for the consideration provided for, and in accordance wit h the procedures set forth, in this Article 2.
(df) Buyer and Company acknowledge that any and all Earnout Payments, Milestone Payments, and payments relating to indemnification obligations of Parent, Buyer or Merger Sub shall be delivered to the Stockholder Representative as agent and on behalf of the Company Holders, and the Stockholder Representative shall distribute such payments to the Company Holders pursuant to the terms of the Stockholder Representation Agreement.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve any Company Holder (i) 12 months after the Effective Time with respect to the Initial Merger Consideration, (ii) 12 months after the date of any Earnout Payment or (iii) 12 months after the date of either the Wound Closure Milestone or the Orthopedic Milestone Payment, shall be returned to ParentBuyer, upon demand, and any such holder who has not exchanged such Shares holder’s shares of Company Stock for the Merger Consideration in accordance with this Section 3.04 2.9 prior to that time shall thereafter look only to Parent Buyer for payment of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of Company Stock. Notwithstanding the foregoing, Parent neither Buyer, the Company nor the Surviving Corporation shall not be liable to any holder of Shares shares of Company Stock 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 shares of Company Stock three years after the Effective Time (or such earlier date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomegovernmental entity) shall, to the extent permitted by Applicable Lawapplicable law, become the property of Parent the remaining Company Shareholders, free and clear of any claims or interest of any Person previously entitled theretothereto and Buyer shall deliver such unclaimed consideration to the Stockholder Representative for distribution to the remaining Company Holders consistent with their Earnout Pro-Rata Portion (after recalculating such Earnout Pro-Rata Portion without giving effect to ownership by the holders of the unclaimed portions of the Merger Consolidation).
(h) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.9(a) to pay for shares of Company Stock for which appraisal rights have been perfected shall be returned to Buyer upon demand.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Angiotech Pharmaceuticals Inc)
Surrender and Payment. (a) Prior Parent shall authorize one or more Persons reasonably acceptable to the Acceptance Date, Parent shall appoint a bank or trust company Company to act as agent (Exchange Agent hereunder the “Depository "Exchange Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). ." Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant deliver to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than Exchange Agent sufficient cash to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for satisfy the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 . Promptly after the Effective Time, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock ("Company Certificates") or shares of Company Common Stock represented by book-entry ("Company Book-Entry Shares") (other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and instructions for use in effecting the surrender of the Company Certificates or, in the case of Company Book-Entry Shares, the surrender of such shares for payment of the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceledtherefor. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after After the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures this Section 3.4(a), to the Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other procedures documents as agreed by Parentmay be required pursuant to such instructions, the Company, Exchange Agent shall promptly deliver to the Paying Agent, DTC, DTC’s nominees and holder of such other necessary thirdCompany Certificate or Company Book-party intermediariesEntry Shares in exchange therefor, the Merger Consideration to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be issued in a name other than that in which the beneficial owners Company Certificate surrendered for exchange is registered, it shall be a condition of such Shares heldexchange that the Company Certificate so surrendered shall be properly endorsed, directly with signature guaranteed, or indirectly through DTCotherwise in proper form for transfer, including compliance with all laws and that the person requesting such exchange shall become entitled pursuant pay to Section 3.03(a).
(iii) No interest shall accrue Company or be paid on its transfer agent any transfer or other taxes required by reason of the issuance of the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a)3.1.
(ivb) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 shall be deemed to have been paid issued (and paid) in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After shares of Company Common Stock so exchanged.
(c) At any time following the date which is nine months after the Effective Time, there Parent shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any or funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Parent, Surviving Corporation, any subsidiary or Affiliate of Parent or Surviving Corporation or the Exchange Agent 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 former holder of Shares Company Common Stock for any amount paid to a public official cash, pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares pursuant (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to Section 3.03(a)the Company and Parent. Promptly after the Effective Time on the Closing Date, Parent shall make available to the Paying Agent, as needed, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Acceptance Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event no later than within two Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 send, to each holder of Shares at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, the form and substance of such letter of transmittal and instructions shall be reasonably agreed to by Parent and the Company and prepared prior to the Closing.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Certificate or for each such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicablepayable.
(d) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. None Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, Purchaser or the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall have any liability promptly provide additional cash funds to the Paying Agent for the transfer and other similar Taxes described benefit of the Company’s stockholders at the Effective Time in this Section 3.04(b)(iv) under any circumstancethe amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(ce) 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.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(aSection 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time Time, to the extent permitted by Applicable Law, 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 3.04 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, neither Parent nor any of its Affiliates 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 two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
Surrender and Payment. (a) Prior Not less than five (5) days prior to the Acceptance Closing Date, Parent shall appoint designate and enter into an agreement with a bank or trust company in the U.S. to act serve as agent (Paying Agent in the “Depository Agent”) for purposes of 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 Merger (the “Paying Agent”) ). A copy of the agreement with the Paying Agent shall be provided to the Company Agent. Immediately after the Effective Time, the Surviving Company shall pay to the Paying Agent, in immediately available funds, sufficient cash necessary for the purpose payment of exchanging for the Merger Consideration as provided in Section 1.11 upon surrender as part of the Shares pursuant Merger of Company Share Certificates formerly representing Company Shares. Funds made available to Section 3.03(a). Promptly the Paying Agent shall be invested by the Paying Agent as reasonably directed by the Surviving Company.
(b) As promptly as practicable after the Effective Time (and in any event no later than the first Business Day afterwithin three (3) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of business days after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence), the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Surviving 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 mail to each holder of record of a Company Share Certificate (other than the Closing Date Payees): (i) a letter of transmittal in the form attached as Exhibit O (the “Letter of Transmittal”), which (1) specifies that delivery shall be effected, and deliver risk of loss and title to the Company Share Certificates shall pass, only upon actual delivery of the Company Share Certificates to the Paying Agent, (2) contains an appointment of the Company Agent as promptly as possible the agent and true and lawful attorney-in-fact of the Effective Time Holders in accordance with Section 11.1 and (3) is otherwise acceptable to Parent and the Company; and (ii) instructions for use in effecting the surrender of the Company Share Certificates in exchange for the Merger Consideration, without any interest thereon. Upon surrender of Company Share Certificates for cancellation to the Paying Agent, together with a duly executed Letter of Transmittal, the holder of such Company Share Certificates shall be entitled to receive in exchange therefor a check or wire transfer in the amount of the Per Share Merger Consideration (less such holder’s Pro Rata Share of the Escrow Amount, the Tax Escrow Amount and the Company Agent Retention Amount) for each Company Share formerly represented thereby to be mailed or paid within five (5) business days of receipt of such Company Share Certificate and Letter of Transmittal, in accordance with this Section, and the Company Share Certificates so surrendered shall be canceled.
(c) Promptly following the date that is six (6) months after the Effective Time, unless the Merger Consideration Surviving Company shall otherwise direct the Paying Agent in writing, the Paying Agent shall deliver to which such holder shall become entitled pursuant Section 3.03(a)the Surviving Company all cash and any documents in its possession relating to the Transactions, and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, duties 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 thereofterminate. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05Thereafter, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 prior to that time a Company Share Certificate shall thereafter look only to Parent the Surviving Company for payment of the Merger Consideration and may surrender such Company Share Certificate to the Surviving Company or Parent and (subject to applicable abandoned property, escheat and similar laws) receive in respect exchange therefor its applicable portion of such Shares Merger Consideration, without any interest thereon. Notwithstanding the foregoing, Parent none of the Paying Agent, Parent, Merger Sub, the Company or the Surviving Company shall not be liable to any a holder of Company Shares for any amount paid amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed Legal Requirement.
(d) If any Company Share Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Share Certificate to be lost, stolen or destroyed, the Paying Agent (or if more than six (6) months after the Effective Time, the Surviving Company or Parent), shall issue in exchange for such lost, stolen or destroyed Company Share Certificate, the Merger Consideration deliverable in respect thereof determined in accordance with this Agreement.
(e) No dividends or other distributions with respect to capital stock of the Surviving Company with a record date after the Effective Time shall be paid to the holder of any unsurrendered Company Share Certificate.
(f) All cash paid in respect of the surrender for exchange of Company Shares immediately prior in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such time when Company Shares. If, after the amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEffective Time, Company Share Certificates are presented to the extent permitted by Applicable LawSurviving Company for any reason, the property of Parent free they shall be canceled and clear of any claims or interest of any Person previously entitled theretoexchanged as provided in this Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior Following the date hereof and prior to the Acceptance DateEffective Time, Parent shall shall, appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent (in the “Depository Agent”) for purposes of 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 “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a)Merger. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of before the Effective Time, Parent shall depositdeposit with the Exchange Agent (i) a cash amount in immediately available funds equal to the Cash Consideration and (ii) the number of shares of Parent Common Stock equal to the Stock Consideration. Promptly after the appointment of the Exchange Agent, or Parent shall cause the Exchange Agent to be deposited, with mail to each holder of record of Company Shares as of immediately prior to the Paying Agent cash sufficient Effective Time entitled to pay the aggregate receive Aggregate Merger Consideration payable pursuant to Section 3.03(a2.5, a letter of transmittal (which shall be in the form and substance reasonably acceptable to Parent and the Company) (together with a “Letter of Transmittal”) and which shall (i) have customary representations and warranties as to title, authorization, execution and delivery, (ii) have a customary release of all claims against Parent and the amount deposited Company arising out of or related to such holder’s ownership of Company Shares, (iii) specify that delivery shall be effected, and risk of loss and title to the certificates evidencing such Company Shares (the “Certificates”), to the extent such Company Shares are certificated, shall pass, only upon proper delivery of the Certificates to the Exchange Agent, (iv) include instructions for use in effecting the surrender of the Certificates pursuant to the immediately preceding sentenceLetter of Transmittal and (v) permit each Stockholder to allocate, on a share-by-share or “block” basis, those Company Shares exchanged for such holder’s share of the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerCash Consideration.
(b) Except as provided Within two (2) Business Days (but in this Section 3.04(b), at no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for cancellation (to the extent such Company Shares are or were certificated), holders together with a Letter of Shares shall not Transmittal, duly completed and validly executed in accordance with the instructions thereto and such other documents as may be required pursuant to take any action with respect to such instructions, the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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, such Certificates shall be entitled to receivereceive in exchange therefore, and Parent shall cause direct the Paying Exchange Agent to pay deliver the Per Share Stock Consideration or the Per Share Cash Consideration, as applicable, in accordance with the provisions of Section 2.5 and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a)2.6, and the Shares Certificate(s) so exchanged surrendered shall forthwith be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 thereofcancelled. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.052.11, each Certificate entitled to receive the Per Share Stock Consideration or the Per Share Cash Consideration, as applicable, in accordance with Section 2.5 shall be deemed at any time all times after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Per Share Stock Consideration or the Per Share Cash Consideration, as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Companyapplicable, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. 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 holder is entitled to receive in accordance with the terms hereof shall be deemed to have been paid in full satisfaction provisions 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 SharesSection 2.5.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior If a holder of Company Stock surrenders their Company Stock Certificates or other documentary evidence, reasonably satisfactory to Buyer, that legal and beneficial ownership of Company Stock is vested in the holder thereof, together with a completed Letter of Transmittal and any other documents as may be reasonably required by the Paying Agent, in accordance with the instructions set forth therein, at least two Business Days prior to the Acceptance Closing Date and such holder is the record holder as of the Closing Date, Parent then Buyer shall appoint a bank or trust company direct the Paying Agent to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price pay to the holders holder of Shares that become entitled to receive such Company Stock, promptly after the aggregate Offer Price pursuant to Effective Time, an amount in accordance with Section 2.01(d) and 1.7. At or as agent (soon as practicable after the “Paying Agent”) for the purpose execution of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after this Agreement (and in any event no later than within five Business Days following the first Business Day afterexecution of this Agreement), the Company will send to the holders of Company Stock: (i) a Letter of Transmittal and (ii) instructions for use in effecting the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the surrender of Company Stock Certificates in exchange for payment of the aggregate Offer Price payable pursuant Per-Share Merger Consideration relating thereto; provided that the Company shall afford Buyer a reasonable opportunity, and in any event not less than five days, to Section 2.01(d)review and comment upon such documents and shall incorporate Buyer’s comments thereto prior to distribution. As If a holder of Company Stock surrenders their Company Stock Certificates, or provides other documentary evidence, reasonably satisfactory to Buyer, that legal and beneficial ownership of Company Stock is vested in the holder thereof, together with a completed Letter of Transmittal any time after two Business Days prior to the Closing Date and such holder is the record holder as of the Effective TimeClosing Date, Parent then the holder of such Company Stock shall deposit, or shall cause to be deposited, paid as soon as reasonably practical thereafter. Upon surrender of a Company Stock Certificate for exchange in accordance with the Paying Agent cash sufficient Letter of Transmittal (or upon the submission of other documentary evidence, reasonably satisfactory to pay Buyer, that legal and beneficial ownership of Company Stock is vested in the aggregate Merger Consideration payable pursuant to Section 3.03(a) (holder thereof), together with a duly executed Letter of Transmittal and such other documents as may be reasonably required by Buyer or the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b)Paying Agent, at or after the Effective Time, holders of Shares shall not be required to take any action with respect to Time the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American such Company Stock Transfer & Trust Company, 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, shall be entitled to receivereceive in exchange therefor payment of an amount equal to the Per-Share Merger Consideration multiplied by the number of Common Stock Equivalent Shares so surrendered. Until surrendered as contemplated by this Section 1.12, each share of Company Stock shall be deemed, from and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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 shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Per-Share Merger Consideration as contemplated by Section 3.03(a).
(iv) If applicable thereto and no interest will be paid or accrued for the payment benefit of any such holder on the Merger Consideration is to be made to a Person other than payable upon the Person surrender of such Company Stock. If any Company Stock Certificate shall have been lost, stolen or destroyed, Buyer or the Paying Agent may, in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be its discretion and as a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of precedent to the payment of the applicable portion of Merger Consideration Consideration, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit, in form and substance reasonably acceptable to Buyer and the Paying Agent, and to post a Person other than bond in customary amount as Buyer or the registered holder Paying Agent may reasonably require, each of which provides for indemnity by such owner against any claim that may be made against Buyer, the Shares surrendered, Paying Agent or shall have established to the satisfaction of the Surviving Corporation that with respect to such Taxes either have been paid or are not applicableCompany Stock Certificate. None of ParentBuyer, Purchaser the Company, Merger Sub, the Paying Agent or the Surviving Corporation shall have be liable to any liability for the transfer and other similar Taxes described Person in this Section 3.04(b)(iv) under respect of 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.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares 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 3.04 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 delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration that remains undistributed to the holders of Shares Company Stock as of the second anniversary of the Closing (or immediately prior to such time when earlier date on which any portion of the amounts Merger Consideration would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity), shall, to the extent permitted by Applicable Lawapplicable Law be delivered by the Paying Agent to, and shall become the property of, the property of Parent Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) The Parties agree that American Stock Transfer and Trust Company shall act as exchange agent hereunder (the “Exchange Agent”) with respect to the Merger. Back to Contents
(b) Prior to the Acceptance DateEffective Time, Parent the Company shall appoint a bank the Exchange Agent to effect the issuance of the Merger Shares in exchange for the certificates that immediately prior to the Effective Time represented outstanding PolyMedix Common Stock or trust company to act as agent PolyMedix Preferred Stock (the “Depository AgentStock Certificates”) for purposes of paying ). On the aggregate Offer Price Closing Date, the Company shall deliver to the Exchange Agent, in trust for the benefit of holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Stock Certificates, a stock certificate (issued in the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment name of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, Exchange Agent or shall cause to be deposited, with the Paying Agent cash sufficient to pay its nominee) representing the aggregate Merger Consideration payable Shares issuable to such holders pursuant to Section 3.03(aSections 3.1(b) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”)and 3.5. The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, 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 Promptly after the Effective Time, but in any event not later than five (5) business days thereafter, the Exchange Agent shall send to each holder of a Stock Certificate a letter of transmittal and instructions for use in effecting the exchange of the Stock Certificate(s) for stock certificate(s) representing the applicable Merger Consideration Shares issuable to which such holder pursuant to Sections 3.1(b) and 3.5. Provision also shall become entitled pursuant Section 3.03(a)be made for holders of the Stock Certificates to procure in person immediately after the Effective Time a letter of transmittal and instructions and to deliver in person immediately after the Effective Time such letter of transmittal and Stock Certificates in exchange for the applicable Merger Shares.
(c) After the Effective Time, the Stock Certificates shall represent the right, upon surrender thereof to the Exchange Agent, together with a duly executed and properly completed letter of transmittal relating thereto, to receive in exchange therefor the applicable Merger Shares subject to any required Tax withholding, and the Shares Stock Certificates so exchanged surrendered shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
Until so surrendered, each Stock Certificate (iiother than Dissenting Shares) With respect to Shares heldshall, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly 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 and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party 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) represent 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 shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration Shares. Notwithstanding the foregoing, upon surrender of a Stock Certificate, the holder thereof shall be entitled to any dividends or other distributions that are payable to the holders of record of Company Common Stock as contemplated by Section 3.03(a)of a date on or after the Effective Time and the time of such surrender; provided, that, no such Person shall be entitled to receive any interest on such dividends or other distributions.
(ivd) If the payment any shares of any Merger Consideration is Company Common Stock are to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration issued to a Person other than the registered holder of the Shares surrenderedStock Certificate surrendered in exchange therefore, it shall be a condition to such issuance or payment that the Stock Certificate surrendered shall have established be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such issuance shall pay 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 satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. 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.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Shares that remains unclaimed by the holders of Shares twelve months PolyMedix Common Stock or PolyMedix Preferred Stock one (1) year after the Effective Time shall be returned to Parentthe Company, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration holder’s Stock Certificates in accordance with this Section 3.04 3.3 prior to that time shall thereafter look only to Parent for payment of the Company, as a general creditor thereof, to exchange such Stock Certificates or to pay amounts to which such holder is entitled pursuant to this Article III. If Stock Certificates are not surrendered prior to six (6) years after the Effective Time (or, in any particular case, prior to such earlier date on which any Merger Consideration Shares issuable or payable in respect of such Stock Certificates would otherwise escheat to or become the property of any governmental unit or agency), the Merger Shares without issuable or payable in respect of such Stock Certificates shall, to the extent permitted by applicable law, become the property of the Company, free and clear of all claims or interest of any interest thereonPerson previously entitled thereto. Notwithstanding the foregoing, Parent none of the Parties hereto shall not be liable to any holder of Shares Stock Certificates for any amount paid paid, or Merger Shares delivered, to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed Back to Contents
(f) If any Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Stock Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such Person of Shares immediately prior a bond in such reasonable amount as the Company may direct as indemnity against any claim that may be made against it with respect to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawStock Certificate, the property of Parent free and clear of any claims Exchange Agent will issue in exchange for such lost, stolen or interest of any Person previously entitled theretodestroyed Stock Certificate the Merger Shares in respect thereof pursuant to this Agreement.
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Sources: Agreement and Plan of Merger and Reorganization (Polymedix Inc)