Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the Offer, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent. (b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5. (c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto. (d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement. (e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made. (f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Chimerix Inc), Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Jazz Pharmaceuticals PLC)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a Agent and shall be in such form and have such other customary agent’s message with respect to Book-Entry Shares, provisions as the Surviving Corporation may reasonably specify) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa Certificate, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares Certificate shall be entitled beentitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of Company Common Stock formerly evidenced by such Certificate, and such Certificates and Book-Entry Shares Certificate shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares Certificate for the benefit of the holder thereofof such Certificate. If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Acquisition Sub that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificate. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated a condition precedent to the payment of the Merger Consideration for each share of Company Common Stock formerly evidenced by Section 2.5such Certificate, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) At any time following twelve (12) months the sixth month after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares shares of Company Common Stock (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares a share of Company Common Stock for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementslaw. Any amounts remaining unclaimed by If any Certificates shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such holders at earlier date on which any Merger Consideration in respect of such time at which such amounts Certificate would otherwise escheat to or become the property of any Governmental Body shall becomeBody), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Legal Requirementslaw, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest of any Person person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers ofshares of Shares Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Acquisition Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, consideration otherwise payable in the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Common Stock such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs or other recipient of consideration hereunder Common Stock in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 3 contracts
Sources: Merger Agreement (Borland Software Corp), Merger Agreement (Starbase Corp), Merger Agreement (Borland Software Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Exchange Agent”) for the holders of Shares to receive the aggregate Offer funds for purposes of effecting the payment and distribution of the Merger Price to which holders of such Shares shall become entitled pursuant to contemplated by Section 1.1(h) and to act as agent (2.5(a)(iv). Promptly after the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderEffective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of in an amount representing the aggregate Offer Merger Price payable pursuant to Section 1.1(h2.5(a)(iv) in exchange for outstanding shares of Company Common Stock, to be paid in respect of Stock Certificates and Book-Entry Shares by the Exchange Agent in accordance with this Agreement. Such funds deposited with the Exchange Agent are referred to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, herein as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund .” Such funds shall be invested by the Paying Exchange Agent as directed by Parent, in its sole discretion, pending payment thereof by the Surviving Corporation; provided that Exchange Agent to the holders of the shares of Company Common Stock. Earnings from such investments shall be (w) in obligations the sole and exclusive property of or guaranteed by the United States Parent, and no part of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 earnings shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect accrue to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentholders of shares of Company Common Stock.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder Parent shall cause the Exchange Agent to mail to the Persons who, immediately prior to the Effective Time, were record holders of record certificates representing shares of (i) Shares represented by a certificate evidencing such Shares Company Common Stock (“Certificated SharesStock Certificates”) or non-certificated shares of Company Common Stock represented by book-entry (ii) “Book-Entry Shares, who, in each case ”): (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be transmittal in reasonable and customary form and shall containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of Stock Certificates shall be effected, and risk of loss and title to the Certificated Shares Stock Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Stock Certificates to the Paying Exchange Agent, or a customary agent’s message with respect to Book-Entry Shares, ); and (Bii) instructions for use in effecting the surrender of the Stock Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5Shares. Upon surrender to the Paying Agent of Certificates (a Stock Certificate or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or a Book-Entry SharesShare to the Exchange Agent for exchange, together with such a duly executed letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to by the instructions, Exchange Agent or Parent: (A) the holder of such Certificated Shares Stock Certificate or Book-Entry Shares Share shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share Price payable to such holder pursuant to Section 2.5(a)(iv) in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Stock Certificate or Book-Entry Share, ; and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on (B) the Merger Consideration payable upon the surrender of any Certificates Stock Certificate or Book-Entry Shares for Share so surrendered shall be canceled. In the benefit event of a transfer of ownership of any shares of Company Common Stock which are not registered in the transfer records of the holder thereof. If the Company, payment of any the Merger Consideration is to Price may be made to a Person other than the Person holder in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Stock Certificate so surrendered is registered, if any such Stock Certificate shall be properly endorsed properly or otherwise be in proper form for transfer, and such holder shall pay any transfer and that the Person requesting such payment shall have paid all transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Parent that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration Price with respect to Book-Entry Shares shall only be made to the a Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Stock Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time deemed, from and after the Effective Time Time, to represent only solely the right to receive the applicable Merger Consideration Price payable to such holder pursuant to Section 2.5(a)(iv) for each share of Company Common Stock formerly evidenced by such Stock Certificate or Book-Entry Share. If any Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated by a condition to the payment of Merger Price pursuant to Section 2.52.5(a)(iv), require the owner of such lost, stolen or destroyed Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Exchange Agent, Parent or the Surviving Corporation with respect to such Stock Certificate. No interest shall be paid or shall accrue on any cash payable to holders of Stock Certificates pursuant to the provisions of this Section 2.
(c) At any time following twelve (12) months after Any portion of the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed Payment Fund that remains undistributed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Stock Certificates or Book-Entry Shares held by themas of the date 180 days after the date on which the Merger becomes effective shall be delivered to Parent upon demand, without and any interest thereonholders of Stock Certificates or Book-Entry Shares who have not theretofore surrendered their Stock Certificates or Book-Entry Shares in accordance with this Section 2.6 shall thereafter look only to Parent for satisfaction of their claims for payment pursuant to Section 2.5(a)(iv). Notwithstanding None of Parent, Acquisition Sub, the foregoingCompany, neither the Surviving Corporation nor and the Paying Exchange Agent shall be liable to any holder or former holder of Certificated Shares shares of Company Common Stock or Book-Entry Shares for the Merger Consideration to any other Person with respect to any cash amounts delivered in respect of such Share to a any public official pursuant to any applicable abandoned propertyproperty law, escheat law or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled theretoRequirement.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Stock Certificates or Book-Entry Shares that were outstanding immediately prior to the Effective Time shall cease to have any rights as stockholders of the Company, and the stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately prior to the Effective Time. No further transfer of any such Shares except as otherwise provided herein or by applicable Legal Requirementsshares of Company Common Stock shall be made on such stock transfer books after the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares are a valid Stock Certificate is presented to the Surviving Corporation for any reasonor Parent, they such Company Stock Certificate shall be cancelled canceled and shall be exchanged as provided in this AgreementSection 2.6.
(e) Each of the CompanyThe Exchange Agent, Parent, Acquisition Sub and the Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold (from any consideration payable or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable otherwise deliverable to any holder of the Shares or any former holder of Company Options, Company RSUs or any other consideration otherwise payable Common Stock pursuant to this Agreement such amounts as it the Exchange Agent, Parent, Acquisition Sub or the Surviving Corporation determines in good faith is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce be deducted or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or withheld therefrom under the appropriate series of IRS Form W-8, as applicable, Code or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that provision of state, local or foreign Tax law or under any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodyother Legal Requirement. To the extent that any such amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Stock Certificate shall have has not been lost, stolen or destroyed, upon the making of an affidavit of that fact surrendered by the holder earlier of: (i) the fifth anniversary of the Certificated Shares formerly represented date on which the Merger becomes effective; or (ii) the date immediately prior to the date on which the consideration that such Stock Certificate represents the right to receive would otherwise escheat to or become the property of any Governmental Body, then such consideration shall, to the extent permitted by that Certificateapplicable Legal Requirements, or by a representative become the property of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder free and clear of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less or interest of any amounts Person previously entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2thereto.
Appears in 3 contracts
Sources: Merger Agreement (Maxim Integrated Products Inc), Merger Agreement (Maxim Integrated Products Inc), Agreement and Plan of Merger (Volterra Semiconductor Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Parent or the Surviving Corporation; provided that . Earnings from such investments shall be (w) in obligations the sole and exclusive property of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) Parent and Section 2.5, as applicable, Parent or the Surviving Corporation Corporation, and no part of such earnings shall promptly replace or restore the cash in the Payment Fund so as accrue to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentholders of shares of Company Common Stock.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5thereto. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa Certificate, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of Company Common Stock formerly evidenced by such Certificate, and such Certificates and Book-Entry Shares Certificate shall then thereupon be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares Certificate for the benefit of the holder thereofof such Certificate. If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the Company’s stock transfer books of the Companybooks, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Acquisition Co. that such transfer or other Taxes either have been paid or are not applicable. None of ParentExcept as set forth in Section 2.8, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificate. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated a condition precedent to the payment of the Merger Consideration for each share of Company Common Stock formerly evidenced by Section 2.5such Certificate, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) At any time following twelve (12) months after the six-month anniversary of the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not then disbursed to holders of Certificated Shares or Book-Entry Shares shares of Company Common Stock (including without limitation all interest and other income received by the Paying Agent in respect of all funds made available to itsuch funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent nor any other party to this Agreement shall be liable to any holder of Certificated Shares or Book-Entry Shares a share of Company Common Stock for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementslaw. Any amounts remaining unclaimed by If any Certificates shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such holders at earlier date on which any Merger Consideration in respect of such time at which such amounts Certificate would otherwise escheat to or become the property of any Governmental Body shall becomeBody), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Legal RequirementsLaw, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the Company’s stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records shares of the Company’s capital stock. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaw.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Acquisition Co. shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, consideration otherwise payable in the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Common Stock such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs or other recipient of consideration hereunder Common Stock in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 3 contracts
Sources: Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Parent or the Surviving Corporation; provided that . Earnings from such investments shall be (w) in obligations the sole and exclusive property of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) Parent and Section 2.5, as applicable, Parent or the Surviving Corporation Corporation, and no part of such earnings shall promptly replace or restore the cash in the Payment Fund so as accrue to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentholders of shares of Company Common Stock.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5thereto. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa Certificate, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of Company Common Stock formerly evidenced by such Certificate, and such Certificates and Book-Entry Shares Certificate shall then thereupon be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares Certificate for the benefit of the holder thereofof such Certificate. If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the Company’s stock transfer books of the Companybooks, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Acquisition Co. that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificate. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated a condition precedent to the payment of the Merger Consideration for each share of Company Common Stock formerly evidenced by Section 2.5such Certificate, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) At any time following twelve (12) months after the six-month anniversary of the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not then disbursed to holders of Certificated Shares or Book-Entry Shares shares of Company Common Stock (including without limitation all interest and other income received by the Paying Agent in respect of all funds made available to itsuch funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent nor any other party to this Agreement shall be liable to any holder of Certificated Shares or Book-Entry Shares a share of Company Common Stock for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementslaw. Any amounts remaining unclaimed by If any Certificates shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such holders at earlier date on which any Merger Consideration in respect of such time at which such amounts Certificate would otherwise escheat to or become the property of any Governmental Body shall becomeBody), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Legal RequirementsLaw, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the Company’s stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records shares of the Company’s capital stock. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaw.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Acquisition Co. shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, consideration otherwise payable in the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Common Stock such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs or other recipient of consideration hereunder Common Stock in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Black Box Corp), Merger Agreement (Norstan Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferClosing Date, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.51.5. As and when necessary On or prior to comply with its and Purchaser’s obligations hereunderthe Closing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger; provided that any interest or other income resulting from investment of the Payment Fund that results in an amount being held in the Payment Fund that is greater than the amount payable pursuant to this Section 1.6 shall be promptly returned to Parent. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation▇▇▇▇▇▇; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable1.5, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent1.5.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case of (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the stock certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions (including the requirement for each holder of Shares to provide IRS Form W-9 or applicable series of IRS Form W-8) for use in effecting the surrender of the Certificates or and Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares in accordance with this Section 1.6 (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs RSUs, Company PSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs RSUs, Company PSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 2 contracts
Sources: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate Offer Price funds to which such holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply Substantially concurrent with its and Purchaser’s obligations hereunderthe Effective Time, 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 1.1(h1.1(b) and with the Paying Agent aggregate cash sufficient to pay make payment of the aggregate Merger Consideration Offer Price payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Aincluding in connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration Offer Price payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body Entity shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by Parent or the Surviving CorporationPaying Agent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)2.10), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 2 contracts
Sources: Merger Agreement (Ikanos Communications, Inc.), Merger Agreement (Ikanos Communications, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a single bank or trust company reasonably acceptable to the Company to act both as agent (in such capacity, the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (in such capacity, the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.52.6. As The agreement or agreements pursuant to which Parent shall appoint the Depository Agent and when necessary Paying Agent shall be in form and substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent shall deposit, or shall take all steps necessary to enable and cause Purchaser to be depositeddeposit, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 2.6 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the Surviving Corporation; provided payments required by Article I or this Article II or affect the amount of the aggregate Offer Price or the Merger Consideration payable in respect of the Shares and following any losses, or if for any other reasons the Payment Fund shall not be sufficient to make prompt payment of the Offer Price or Merger Consideration (including as a result of Dissenting Shares losing their status as such), Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses or any other amount necessary so that the Payment Fund is sufficient to make prompt payment of the aggregate Offer Price and Merger Consideration, (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 (w) in short-term obligations of the United States of America with maturities of no more than three (3) months or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation funds shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration become part of the Payment Fund, maintained at a level sufficient and any amounts in excess of the amounts payable in connection with the Offer or under Section 2.6 shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any purpose not contemplated by this Section 2.7. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) Agent, in connection with the exchange of Shares and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess the payment of the amounts payable pursuant to Section 2.6 shall be for Merger Consideration in respect of the benefit of Parent and promptly returned to ParentShares.
(b) Promptly after the Effective Time (but in no any event later than within five (5) business days thereafterafter the Effective Time), Parent and the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.6 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or Booknon-certificated Shares represented by Book Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Book Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Book Entry ShareShares, and such Certificates and Book-Book Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Book Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Corporation, Parent and the Paying Agent that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Book Entry Shares shall only be made to the Person in whose name such Book-Book Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the one year anniversary of the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Book Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaw) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Book Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Parent, Purchaser, the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Book Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaw. Any amounts remaining unclaimed by such holders at immediately prior to such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaw, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates or Book Entry Shares.
(e) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal RequirementsLaw. If, after the Effective Time, Certificates any Certificate or Book-Book Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasontransfer in accordance with this Section 2.7, they it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7. No Merger Consideration shall be paid to the holder of any unsurrendered Certificate or Book Entry Share until the surrender of such Certificate or Book Entry Share in accordance with this Section 2.7.
(ef) Each of Notwithstanding anything to the Companycontrary herein, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Price or Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement Law to deduct and withhold with respect to Taxes. Each such withholding agent Taxes and shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any remit such amounts so withheld are timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Law. To the extent that amounts are so withheld and timely and properly remitted paid to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(fg) If In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed Certificate, Certificate a check in the applicable Merger Consideration amount (after giving effect to be paid any required Tax withholdings as provided in respect Section 2.7(f)) equal to the number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the per Share Merger Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Altair Engineering Inc.), Merger Agreement (Datawatch Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Closing Amounts to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Closing Amounts to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Closing Amounts payable pursuant to Section 1.1(h) and 1.1(i). On or prior to the Closing Date, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration Closing Amounts payable pursuant to Section 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Closing Amounts in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration Closing Amounts to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs Options or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Options or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 2 contracts
Sources: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Paying Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.5. At or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderEffective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’'▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor's Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s 's acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned paid solely to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at as of immediately prior to the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such whose Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled were converted into the right to receive the Merger Consideration pursuant to Section 2.5, 1.5 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry and such Shares are presented to the Surviving Corporation for any reason, they shall no longer be cancelled outstanding and exchanged as provided in this Agreementshall automatically be cancelled.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Shares or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zeltiq Aesthetics Inc), Merger Agreement (Zeltiq Aesthetics Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As Without limiting the generality of Sections 1.1(i) and when necessary to comply with its 9.12, as of each of the Offer Acceptance Time and Purchaser’s obligations hereunderEffective Time, Parent shall depositshall, or shall take all steps necessary to enable and cause to be depositedPurchaser to, deposit with the Depository Paying Agent cash sufficient to make the payment all of the aggregate Offer Price payable funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to Section 1.1(h) the Offer and to pay in respect of the aggregate Merger Consideration payable pursuant to Section 2.5 be paid in respect of the Shares, as applicable (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser shall promptly replace or restore the Mergerlost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.6 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or non-certificated Shares represented by book-entry (the “Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares Shares”) pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months the 180th day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat .
(d) No dividends or other distributions with respect to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property capital stock of the Surviving Corporation with a record date on or its designee, free and clear of all claims or interest after the Effective Time shall be paid to the holder of any Person previously entitled theretounsurrendered Certificates or Book-Entry Shares.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are any Certificate is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasontransfer, they it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7.
(ef) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted paid to the appropriate Governmental BodyBody in accordance with all Legal Requirements, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(fg) If In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed Certificate, Certificate a check in the applicable Merger Consideration amount (after giving effect to be paid any required tax withholdings as provided in respect Section 2.7(f)) equal to the number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the per Share Merger Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Amgen Inc), Merger Agreement (Onyx Pharmaceuticals Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to Before the commencement of the OfferEffective Time, Parent Merger Sub shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository "Paying Agent”") for the holders of Shares shares of UNC Stock in connection with the Merger. From and after the Effective Time Greenwich shall cause funds to receive be deposited with the aggregate Offer Price Paying Agent sufficient to pay the amounts to which the holders of such Shares shares of UNC Stock shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.52.2. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation; , provided that such investments shall be (w) in obligations of or guaranteed by the United States of America or of any agency thereof and backed by the full faith and credit of the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’'▇ Investors ServiceServices, Inc. or S&P Global, Inc.Standard & Poor's Corporation, respectively, (y) or in deposit accounts, certificates of depositdeposit or banker's acceptances of, bank repurchase or reverse repurchase agreements with, or banker’s acceptances of Eurodollar time deposits purchased from, commercial banks with capital exceeding $1 billioncapital, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) surplus and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) undivided profits aggregating in excess of $1 billion (based on the amounts payable pursuant most recent financial statements of such bank which are then publicly available to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentSEC or otherwise).
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of UNC Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.2 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares of UNC Stock ("UNC Certificates") shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) UNC Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the UNC Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa UNC Certificate, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares UNC Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of UNC Stock formerly evidenced by such UNC Certificate, and such Certificates and Book-Entry Shares UNC Certificate shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5UNC Certificate.
(c) At any time following twelve after six (126) months after from the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares shares of UNC Stock (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the UNC Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of After the Effective Time, there shall be no transfers on the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration UNC of transfers any shares of Shares on the records of the Company. From and after UNC Stock that were outstanding immediately before the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, UNC Certificates or Book-Entry Shares are presented to the Surviving Corporation Greenwich or UNC for any reasontransfer, they shall be cancelled and exchanged for payment of the applicable amount of Merger Consideration as provided in Section 2.2, in accordance with the procedures set forth in this AgreementSection 2.3.
(e) Each of Notwithstanding the Companyforegoing, the Surviving Corporation, Parent and Purchaser, and their Affiliates, neither Greenwich nor UNC shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable liable to any holder of the Shares shares of UNC Common Stock or UNC Series B Preferred Stock for any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder payment of the Shares, holder per share cash portion of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect delivered to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld a public official pursuant to Section 2.6(e))any applicable abandoned property, in exchange for such lost, stolen escheat or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2similar law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Greenwich Air Services Inc), Agreement and Plan of Merger (Unc Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.record
Appears in 2 contracts
Sources: Merger Agreement (Merck & Co., Inc.), Merger Agreement (Immune Design Corp.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicableParent shall, Parent or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, the Paying Agent or the Depository Agent, as the case may be, shall be entitled to deduct and withhold (withhold, or cause the Paying Agent or the Depository Agent to deduct be deducted and withhold) withheld, from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to this Agreement Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such Any amounts so deducted and withheld are timely and properly remitted and, if required, paid over to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate applicable Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 2 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(hSections 1.1(b) and (f) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The paying agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and (f), and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 A‑1 or P-1 P‑1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5three business days) business days thereafter)after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.5.
(c) At any time following twelve (12) six months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, the Surviving CorporationParent, Parent and Purchaser, and their Affiliates, the Surviving Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any holder of Shares or Company Stock Awards such amounts as it is required by any Legal Requirement to deduct and or withhold with respect to Taxestherefrom under applicable Legal Requirements. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2Article II.
Appears in 2 contracts
Sources: Merger Agreement (Antares Pharma, Inc.), Merger Agreement (Antares Pharma, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionone billion dollars, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicableParent shall, Parent or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, the Paying Agent or the Depository Agent, as the case may be, shall be entitled to deduct and withhold (withhold, or cause the Paying Agent or the Depository Agent to deduct be deducted and withhold) withheld, from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to this Agreement Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such Any amounts so deducted and withheld are timely and properly remitted paid over to the appropriate applicable Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 2 contracts
Sources: Merger Agreement (Forty Seven, Inc.), Merger Agreement (Gilead Sciences Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Commencement Date, Parent shall designate a bank or trust company reasonably acceptable to the Company (such approval not to be unreasonably withheld) to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares and the holders of outstanding shares of Company Preferred Stock to receive the aggregate cash Merger Consideration to which holders of such Shares or the holders of such outstanding shares of Company Preferred Stock, as the case may be, shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderPromptly after the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether 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 aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level has sufficient for funds to allow the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares or shares of outstanding Company Preferred Stock, in each case, represented by a certificate evidencing such Shares or shares of Company Preferred Stock (collectively, the “Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form (and mutually approved in form and substance by Parent and the Company) and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, or such agent’s message in the case of Book-Entry Shares, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereonthereon and subject to any withholding of Taxes in accordance with Section 2.6(e). Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of From and after the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares and any shares of Company Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares or any shares of Company Preferred Stock except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder Shares, shares of Company Preferred Stock, Company Options, Company RSUs Warrants or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Preferred Stock, Company Options, the Company RSUs Warrants or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 2 contracts
Sources: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall will designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall Shares will become entitled pursuant to Section 2.5this Agreement. As and when necessary to comply with its and Purchaser’s obligations hereunderAt the Closing, Parent shall deposit, will deposit or shall cause to be deposited, deposited with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and funds to pay the aggregate Merger Consideration payable pursuant to Section 2.5 in respect of the Shares (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser will, or will cause the MergerSurviving Corporation to, promptly replace or restore the lost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall will be invested by the Paying Agent as directed by the Surviving CorporationParent; provided that (i) no such investment or losses thereon will relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable in respect of the Shares and following any losses Parent will promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment will have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall will be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the funds will be paid to Parent. The Payment Fund has diminished will not be used for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) other purpose. The Surviving Corporation will (and Section 2.5, as applicable, Parent or will cause the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund isto) pay all charges and expenses, at all times during the duration including those of the Payment FundPaying Agent, maintained at a level sufficient for in connection with the Depository Agent exchange of Shares and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess payment of the amounts payable pursuant to Section 2.6 shall be for Merger Consideration in respect of the benefit of Parent and promptly returned to ParentShares.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, Parent and the Surviving Corporation shall will cause the Paying Agent to be delivered mail to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A2.6(a)(iii) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall will specify that delivery shall will be effected, and risk of loss and title to the Certificated Shares shall Certificates will pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicableA) or Book-Entry SharesCertificates, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, or (B) receipt of an “agent’s message” by the instructionsPaying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificated Shares Certificates or Book-Entry Shares shall Shares, as applicable, will be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, as applicable, and such Certificates and Book-Entry Shares shall Shares, as applicable, will then be cancelledcanceled. No interest shall will accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is are registered on the stock transfer books of the Company, it shall will be a condition of payment that the Certificate so surrendered shall will be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall will 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 Certificate surrendered, or shall will have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall will only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve the one hundred eightieth (12180th) months day after the Effective Time, Parent shall the Surviving Corporation will be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall will be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall will be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at If any Certificate or Book Entry Share has not been surrendered or transferred prior to the date on which such amounts any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Body shall Authority, then any such Merger Consideration in respect of such Certificate or Book Entry Share will become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designeeCorporation, free and clear of all any claims or interest of any Person previously entitled thereto.
(d) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time will be paid to the holder of any unsurrendered Certificates or Book-Entry Shares.
(e) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall will be closed and thereafter there shall will be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall will cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates any Certificate or Book-Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasonsurrender or transfer, they shall as applicable, it will be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7.
(ef) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall Purchaser will be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Agreement, such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted paid to the appropriate Governmental BodyBody in accordance with all Legal Requirements, such withheld amounts shall will be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have has been lost, stolen or destroyed, then, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which includes an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed Certificate, Certificate a check in the applicable Merger Consideration amount (after giving effect to be paid any required Tax withholdings as provided in respect Section 2.7(f)) equal to the number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the per Share Merger Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Anadigics Inc), Merger Agreement (Anadigics Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as an agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration consideration to which such holders of such shares shall become entitled pursuant to Section 2.52.1(b) and Section 3.5(a)(iii) and to act as rights agent (in such capacity, the “Rights Agent”) under the Contingent Value Right Agreement. As At or prior to the earlier to occur of the Offer Acceptance Time and when necessary the Effective Time, Parent and the Rights Agent shall enter into the Contingent Value Right Agreement. The Paying Agent Agreement pursuant to comply with its which Parent shall appoint the Paying Agent shall be in form and Purchaser’s obligations hereundersubstance reasonably acceptable to the Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits with the Paying Agent, collectively, the “Payment Fund”); provided, that Parent shall not be required to deposit the funds related to the Contingent Value Rights with the Rights Agent unless and until such deposit is required pursuant to the terms of the Contingent Value Right Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Article 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent materially delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable Shares, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6hereby, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.53.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which that had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share Shares to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, the Rights Agent, Parent, Purchaser, the Surviving Corporation, Parent Corporation and Purchaser, and their Affiliates, any Acquired Company shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement and the Contingent Value Right Agreement such amounts as it is required by any Legal Requirement to deduct and withhold therefrom under applicable Tax Laws; provided, however, that except for payments to current or former employees of any Acquired Company with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce Company Options or eliminate Company RSUs, before making any such deduction or withholding, including by requesting any necessary Tax formsPurchaser, including IRS Form W-9 Paying Agent, the Rights Agent, the Surviving Corporation, or the appropriate series of IRS Form W-8Acquired Company, as applicable, shall provide to the applicable payee notice of such deduction or any similar informationwithholding and reasonably cooperate with such payee to obtain reduction of or relief from such deduction or withholding to the extent permitted by applicable Law. Each To the extent that such withholding agent amounts are so deducted and withheld, each such payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Flexion Therapeutics Inc), Merger Agreement (Pacira BioSciences, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior Not less than 3 Business Days prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as an agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration consideration to which such holders of such shares shall become entitled pursuant to Section 2.52.1(f) and Section 3.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make payment of the cash consideration payable pursuant to Section 2.1(f) and with the Paying Agent cash sufficient to make payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 and (togetheriv) (such deposits with the Paying Agent, collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in Consideration; provided, however, the Merger. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this ARTICLE 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent materially delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii) or any holder of Company Warrants, as applicable, (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable or Company Warrants, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Book-Entry Shares pursuant to Section 2.5or Company Warrants, as applicable. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(fthereof), if applicable) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. In the case of any Company Warrants, upon surrender to the Paying Agent of such Company Warrants pursuant to the first sentence of this Section 3.6(b) and such other documents as may be reasonably required pursuant to such instructions, the holder of such Company Warrant shall be entitled to receive in exchange therefor the applicable Warrant Consideration. No interest shall accrue or be paid on the Merger Consideration or Warrant Consideration payable upon the surrender of any Certificates or Certificates, Book-Entry Shares or Company Warrants for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration or Warrant Consideration with respect to Book-Entry Shares or Company Warrants, as applicable, shall only be made to the Person in whose name such Book-Entry Shares or Company Warrants are registered. Until surrendered as contemplated by this Section 2.6hereby, each Certificated Share and Certificate, Book-Entry Share (in each case, other than Dissenting Shares) and Company Warrant 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 2.53.5 or the Warrant Consideration as contemplated by Section 3.8(e).
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which that had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares or Company Warrants (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration or Warrant Consideration, as applicable, that may be payable upon due surrender of the Certificates or Book-Entry Shares or Company Warrants held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share Shares (or, in the case of Company Warrants, to any holder of Company Warrants for the applicable Warrant Consideration) to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser, the Surviving Corporation, Parent Corporation and Purchaser, and their Affiliates, any Acquired Company shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxestherefrom under applicable Tax Laws. Each To the extent that such withholding agent shall use commercially reasonable efforts to reduce or eliminate any amounts are so deducted and withheld, each such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this ARTICLE 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to the sum of (i) (A) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (B) the Merger Consideration plus (ii) the aggregate Warrant Consideration payable in respect of all Company Warrants pursuant to Section 3.8(e).
Appears in 2 contracts
Sources: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferClosing Date, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares and Company Warrants to receive the aggregate cash Merger Consideration to which holders of such shares Shares and Company Warrants shall become entitled pursuant to Section 2.51.5 and Section 1.9, respectively. As and when necessary to comply with its and Purchaser’s obligations hereunder, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of pay the aggregate Offer Price Closing Consideration as and when payable pursuant to Section 1.1(h) 1.5 and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.9 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Closing Consideration in the Merger; provided that any interest or other income resulting from investment of the Payment Fund that results in an amount being held in the Payment Fund that is greater than the amount payable pursuant to this Section 1.6 shall be promptly returned to Parent. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, ▇; provided that (yi) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment or losses thereon shall relieve Parent from making the payments required by Section 1.5 and Section 1.9 and (ii) no such investment shall have a maturity exceeding three (3) monthsmaturities that could prevent or delay payments to be made pursuant to this Agreement. To the extent Parent becomes aware that (ix) there are any losses with respect to any such investments or (iiy) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable1.5, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) 1.5 and Section 2.51.9. For the avoidance of doubt, as applicable. Any interest Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and other income resulting from until such investment (if any) in excess of the amounts payable deposit is required pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentCVR Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares or Company Warrants shall become entitled pursuant to Section 2.51.5 and Section 1.9, respectively) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Shares, Book-Entry Shares or Company Warrants (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Certificates, Book-Entry Shares or Company Warrants held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Shares, Book-Entry Shares or Company Warrants for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserParent, Merger Sub, the Paying Agent, the Rights Agent and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Rights Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs RSUs, Company Warrants or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including withholding by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall use reasonable best efforts to take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement or the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs RSUs, Company Warrants or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 2 contracts
Sources: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.51.5. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in Canadian dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (togetherthe total cash deposited with the Paying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation; Parent; provided that (i) such investments shall be (w) solely in obligations of of, or obligations fully guaranteed by as to principal and interest by, the United States of AmericaU.S. government, (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment shall have a maturity exceeding three thirty (330) months. To the extent days, (iii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iiv) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.5, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are entitled to receive Merger Consideration pursuant to Section 1.5(a)(iv), and (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through DTC or CDS, in the case of each case of clause (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify reasonably acceptable to the Company), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message”) with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement, as applicable, and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled1.5. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC or CDS, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, CDS, DTC’s or CDS’s respective nominees, and such other necessary or desirable third-party intermediaries to ensure that the Paying Agent will transmit to DTC or CDS or their respective nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or CDS or their respective nominees in accordance with DTC’s or CDS’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, CDS, DTC’s or CDS’s respective nominees, and such other necessary or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed letters of transmittal and other appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC or CDS, by book-receipt of an “agent’s message” by the Paying Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC or CDS, in accordance with DTC’s or CDS’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Paying Agent, DTC, CDS, DTC’s or CDS’s respective nominees, and such other necessary and desirable third-party intermediaries pursuant to Section 1.6(c), the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(d), each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable amount of cash, without interest, into which such Shares represented by such Certificate or Book-Entry Share have been converted pursuant to Section 1.5. The Merger Consideration as contemplated by paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 2.51.6(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares.
(ce) At any time following twelve three (123) months years after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding anything to the foregoingcontrary in this Agreement, neither none of Parent, the Surviving Corporation nor Corporation, the Paying Agent or any other Party shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration or any holder of Company Options or Company Warrants for any amounts payable pursuant to Section 1.8 delivered in respect of such Share or Company Options or Company Warrants, respectively, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Corporation and Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Tax Legal Requirements, such withheld amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.Article I.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the Offer, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Closing Amounts to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Closing Amounts to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Closing Amounts payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration Closing Amounts payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Closing Amounts in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Transfer Taxes either have been paid or are not applicable. None of Parent, Purchaser Purchaser, the Company, the Surviving Corporation, the Depository Agent, or the Surviving Corporation Paying Agent shall have any liability for the transfer and other similar Transfer Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration Closing Amounts to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, and each of their Affiliates, as applicable (each a “Withholding Agent”), shall be entitled to deduct and withhold (or cause the Rights Agent, the Paying Agent or the Depository Agent Agent, as applicable, to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs Equity Awards or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to any Taxes. Each such withholding agent Withholding Agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series version of IRS Form W-8, as applicable, or any similar information. Each such withholding agent Withholding Agent shall take all action that may be commercially reasonably necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such deducted and withheld amounts shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Equity Awards or other recipient of consideration hereunder otherwise payable pursuant to this Agreement or the CVR Agreement in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sage Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which such holders of such shares Shares shall become entitled pursuant to Section 2.5the terms of this Agreement. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 2.1 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpursuant to Section 2.1. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be in (wi) in obligations of or guaranteed by the United States of America, (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (yiii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (ziv) in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition acquisition, or (v) a combination of the foregoing foregoing, and, in any such case, no such instrument shall have a maturity exceeding three (3) months. To ; provided further that in no event shall such investments affect receipt of the Merger Consideration by former holders of record of Shares or otherwise impair such holders’ rights hereunder, and to the extent that (i) there are any losses with respect to any such investments of the Payment Fund, or (ii) the Payment Fund has diminished diminishes for any reason below the level required for to promptly pay the Depository Agent or Paying Agent Merger Consideration to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicableall former holders of record of Shares, Parent shall, or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, is at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicablepayments. Any interest and or other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 investments shall be for the benefit of paid to Parent and promptly returned to Parentor its designee, upon demand.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter)days) after the Effective Time, the Surviving Corporation shall cause to be delivered to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) ), or (ii) a holder of record of Book-Entry Shares, whothat, in each case (i) and (ii) was entitled either case, were converted into the right to receive the Merger Consideration pursuant to Section 2.52.1, (Ai) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, effected (and risk of loss and title to the Certificated Shares Certificates shall pass, ) only upon (A) in the case of the Certificates, proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f2.2(f), if applicable) to the Paying Agent, or (B) in the case of Book-Entry Shares, receipt by the Paying Agent of a customary agent’s message (or such other evidence, if any, as the Paying Agent may reasonably request) with respect to such Book-Entry Shares, and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5Consideration. Upon the later to occur of (x) the Effective Time or (y) the surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f2.2(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required pursuant to the instructionsinstructions provided by the Paying Agent, the holder of the Shares that were represented by such Certificated Shares Certificates or Book-Entry Shares as of immediately prior to the Effective Time shall be entitled to receive in exchange therefor the Merger Consideration for payable in respect of each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and or Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration with respect to Shares evidenced by a Certificate is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 formerly represented by the Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b2.2(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to portion of the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had Payment Fund that has not then been made available to the Paying Agent and not disbursed to holders of Certificated Shares that were represented by Certificates or Book-Entry Shares as of immediately prior to the Effective Time (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares that were represented by Certificates or Book-Entry Shares as of immediately prior to the Effective Time for the Merger Consideration delivered in respect of such Share Certificates or Book-Entry Shares to a public official Governmental Body pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by holders of Shares that were represented by Certificates or Book-Entry Shares as of immediately prior to the Effective Time three (3) years after the Effective Time (or immediately prior to such holders at earlier date on which the aggregate Merger Consideration or such time at which such amounts cash would otherwise escheat to or become the property of any a Governmental Body Body) shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares outstanding prior to the Effective Time shall be closed and thereafter there shall be no further registration of transfers of such Shares on the records of the Company. The cash paid in accordance with the terms of this Section 2 in respect of the Shares shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such Shares (subject to Section 262 of the DGCL). From and after the Effective Time, the all holders of the Certificates and Book-Entry Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect as stockholders of the Company other than the right to receive the Merger Consideration (subject to Section 262 of the DGCL) into which the Shares represented by such Certificates or Book-Entry Shares except as otherwise provided herein have been converted pursuant to this Agreement, in each case without interest or by applicable Legal Requirementsduplication. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of Shares, the Shares or consideration payable to any holder of Company Options, Company RSUs Equity Awards or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Legal Requirement to deduct and withhold therefrom with respect to Taxes. Each such withholding agent payor shall use commercially reasonable efforts to reduce or eliminate any such withholding (other than any compensatory withholding), including by requesting any necessary Tax forms, forms (including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, ) or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Equity Awards or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a bond, in such reasonable amount as Parent may directdirect (which shall not exceed the Merger Consideration payable with respect to such Certificate), as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.2(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Conformis Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the Offer, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Closing Amounts to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Closing Amounts to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Closing Amounts payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration Closing Amounts payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Closing Amounts in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Transfer Taxes either have been paid or are not applicable. None of Parent, Purchaser Purchaser, the Company, the Surviving Corporation, the Depository Agent, or the Surviving Corporation Paying Agent shall have any liability for the transfer and other similar Transfer Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration Closing Amounts to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, and each of their Affiliates, as applicable (each a “Withholding Agent”), shall be entitled to deduct and withhold (or cause the Rights Agent, the Paying Agent or the Depository Agent Agent, as applicable, to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs Equity Awards or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to any Taxes. Each such withholding agent Withholding Agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series version of IRS Form W-8, as applicable, or any similar information. Each such withholding agent Withholding Agent shall take all action that may be commercially reasonably necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such deducted and withheld amounts shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Equity Awards or other recipient of consideration hereunder otherwise payable pursuant to this Agreement or the CVR Agreement in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository "Paying Agent”") for the holders of Shares shares of Company Common Stock to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Parent or the Surviving Corporation; provided that . Earnings from such investments shall be (w) in obligations the sole and exclusive property of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) Parent and Section 2.5, as applicable, Parent or the Surviving Corporation Corporation, and no part of such earnings shall promptly replace or restore the cash in the Payment Fund so as accrue to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentholders of shares of Company Common Stock.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the "Certificates") shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa Certificate, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of Company Common Stock formerly evidenced by such Certificate, and such Certificates and Book-Entry Shares Certificate shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares Certificate for the benefit of the holder thereofof such Certificate. If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Acquisition Sub that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificate. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated a condition precedent to the payment of the Merger Consideration for each share of Company Common Stock formerly evidenced by Section 2.5such Certificate, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) At any time following twelve (12) months the sixth month after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares shares of Company Common Stock (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares a share of Company Common Stock for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementslaw. Any amounts remaining unclaimed by If any Certificates shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such holders at earlier date on which any Merger Consideration in respect of such time at which such amounts Certificate would otherwise escheat to or become the property of any Governmental Body shall becomeBody), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Legal Requirementslaw, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaw.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Acquisition Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, consideration otherwise payable in the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Common Stock such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs or other recipient of consideration hereunder Common Stock in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Caminus Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Exchange Agent”) for the holders purposes of exchanging Shares to receive represented by a certificate evidencing such Shares (the aggregate Offer Price “Certificates”) and Book-Entry Shares for the Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.3. On or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderClosing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Cash Consideration payable pursuant to Section 2.5 1.3(a)(iii) (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Cash Consideration in the Merger. The Payment Fund shall be invested by the Paying Exchange Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Global Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To No investment losses resulting from investment of the extent that (ifunds deposited with the Exchange Agent in accordance with this Section 1.4(a) there are shall diminish the rights of any losses with respect holder of Shares to receive the Merger Consideration as provided herein. Neither Parent nor Merger Sub shall be required to deposit any funds related to any CVR with the Rights Agent unless and until such investments or (ii) the Payment Fund has diminished for any reason below the level deposit is required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) the terms of the CVR Agreement and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration no such deposit will be deemed part of the Payment Fund. Notwithstanding anything to the contrary herein, maintained at a level sufficient for the Depository Agent consideration payable to holders of Company Options and the Paying Agent to promptly make such payments Company RSUs pursuant to Section 1.1(h) 1.7 will not be deposited with the Exchange Agent and will be paid in accordance with Section 2.5, as applicable1.6. Any interest and other income resulting from such investment (if any) in excess of In the amounts payable pursuant to Section 2.6 event the Payment Fund shall be for insufficient to pay the benefit of aggregate Cash Consideration in accordance with Section 1.3(a)(iii), Parent and shall promptly returned deposit, or cause to Parentbe deposited, additional funds with the Exchange Agent in an amount that is equal to the shortfall that is required to make such payment.
(b) Promptly after the Effective Time (but in no event later more than five three (53) business days Business Days thereafter), Parent and the Surviving Corporation shall cause the Paying Agent to be delivered mail to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) the Certificates or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.3, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) to the Paying Exchange Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares Shares, as applicable, in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.3. Upon surrender to the Paying Exchange Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive receive, in exchange therefor therefor, the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.4(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.4, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.3.
(c) At any time following twelve (the 12) months after -month anniversary of the Effective Time, Parent shall be entitled to require the Paying Exchange Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.3) which had been made available to the Paying Exchange Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Exchange Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Exchange Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration properly delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Book- Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled canceled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Exchange Agent to deduct and withhold) from the Offer Price, the Merger Consideration any amount payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable Person pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Legal Requirement, such withheld amounts shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made. Other than with respect to any amounts treated as compensatory payments, the Company, the Surviving Corporation and Parent shall use commercially reasonable efforts to cooperate to reduce or eliminate any amounts that would otherwise be deducted or withheld.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.4(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Sources: Merger Agreement (OptiNose, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) ), for the holders of Shares to receive the aggregate Offer Price amount of cash to which holders of such Shares shall become entitled pursuant to Section 1.1(h2.1(b) at the Offer Acceptance Time and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate amount of cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.53.5 at the Effective Time. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits, collectively, the “Payment Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 3.5 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f3.6(f), if applicable) to the Paying Agent), or a customary agent’s message with in respect to of Book-Entry Shares, and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f3.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.63.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.53.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Book- Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of Notwithstanding anything herein to the Companycontrary, the Paying Agent, Rights Agent, Parent, Purchaser, the Surviving Corporation, Parent and Purchaser, Corporation and their Affiliates, respective Affiliates shall be entitled to deduct and withhold from any amounts (or cause the Paying Agent or the Depository Agent to deduct and withholdincluding any CVRs in respect of Shares) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it the payor is required by any Legal Requirement to deduct and withhold with respect to Taxestherefrom under applicable Tax Laws. Each To the extent that such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholdingamounts are so deducted and withheld, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent applicable payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that such Certificate, or by a representative of that such holder, claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 23.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall, in each case, be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent Paying Agent, cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration Closing Amount payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay purpose. Parent shall be responsible for all expenses of the aggregate Offer Price in the Offer and Merger Consideration in the MergerPaying Agent. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion; provided, further, that no such investment or losses thereon shall affect amounts payable to the holders of Company Common Stock pursuant to this Agreement (z) in money market funds having a rating including in the highest investment category granted by a recognized credit rating agency at Offer or the time of acquisition or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three (3) monthsMerger). To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below (including Dissenting Shares losing their status as such) is less than the level required to pay the aggregate consideration payable pursuant to the Offer or the aggregate Merger Consideration payable pursuant to this Agreement, Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds, in cash, to the Payment Fund for the Depository Agent benefit of such holders of Company Common Stock in the amount of any such losses or Paying Agent other amounts necessary to satisfy the obligations of Parent and the Surviving Corporation to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for this Agreement (including in the benefit of Parent and promptly returned to ParentOffer or the Merger).
(b) Promptly after the Effective Time (but in no event later than five (5three business days) business days thereafter)after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was Company Warrants entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration (including payment in the form of or with respect to any CVR) is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration (including payment in the form of or with respect to any CVR) with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.5, including the payments due to such holders (if any) pursuant to the CVR Agreement.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, Parent, Merger Sub, the Company and the Surviving Corporation, Parent Corporation and Purchaser, and each of their Affiliates, respective Affiliates shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any payee thereof such amounts as it is required by any Legal Requirement to deduct and or withhold therefrom under applicable Legal Requirements; provided, that except (i) with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts amounts treated as compensation for Tax purposes or (ii) as a result of the failure of any holder of Shares to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS provide an Internal Revenue Service Form W-9 or the appropriate series of IRS Form W-8, as applicable, Parent shall provide the Company written notice of any applicable payor’s intention to make such deduction or any similar informationwithholding at least five days prior to Closing and shall provide the Company with a reasonable opportunity to obtain reduction of or relief from such deduction or withholding. Each Parent shall reasonably cooperate with the Company to obtain such withholding agent shall take all action that may be necessary to ensure that any reduction or relief from such deduction or withholding. Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration (including payment in the form of or with respect to any CVR) to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2Article II.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Parent or the Surviving Corporation; provided that . Earnings from such investments shall be (w) in obligations the sole and exclusive property of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) Parent and Section 2.5, as applicable, Parent or the Surviving Corporation Corporation, and no part of such earnings shall promptly replace or restore the cash in the Payment Fund so as accrue to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentholders of shares of Company Common Stock.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesa Certificate, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares or Book-Entry Shares Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Shareshare of Company Common Stock formerly evidenced by such Certificate, and such Certificates and Book-Entry Shares Certificate shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares Certificate for the benefit of the holder thereofof such Certificate. If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Acquisition Sub that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) Certificate shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration for each share of Company Common Stock formerly evidenced by such Certificate. If any Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as contemplated a condition precedent to the payment of the Merger Consideration for each share of Company Common Stock formerly evidenced by Section 2.5such Certificate, require the owner of such lost, stolen or destroyed Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against the Paying Agent, Parent or the Surviving Corporation with respect to such Certificate.
(c) At any time following twelve the sixth (126th) months month after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares shares of Company Common Stock (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementslaws) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares a share of Company Common Stock for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementslaw. Any amounts remaining unclaimed by If any Certificates shall not have been surrendered prior to five (5) years after the Effective Time (or immediately prior to such holders at earlier date on which any Merger Consideration in respect of such time at which such amounts Certificate would otherwise escheat to or become the property of any Governmental Body shall becomeBody), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Legal Requirementslaw, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaw.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Acquisition Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, consideration otherwise payable in the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Common Stock such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs or other recipient of consideration hereunder Common Stock in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (togetherthe total cash deposited with the Paying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service▇; provided that (i) such investments shall be solely in obligations of, Inc. or S&P Globalobligations fully guaranteed as to principal and interest by, Inc., respectivelythe U.S. government, (yii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment shall have a maturity exceeding three thirty (330) months. To the extent days, (iii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iiv) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.5, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are entitled to receive Merger Consideration pursuant to Section 1.5(a)(iii), and (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through DTC, in the case of each case of clause (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message”) with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement, as applicable, and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled1.5. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed letters of transmittal and other appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees, and such other necessary and desirable third-party intermediaries pursuant to Section 1.6(c), the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(d), each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable amount of cash, without interest, into which such Shares represented by such Certificate or Book-Entry Share have been converted pursuant to Section 1.5. The Merger Consideration as contemplated by paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 2.51.6(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares.
(ce) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding anything to the foregoingcontrary in this Agreement, neither none of Parent, the Surviving Corporation nor Corporation, the Paying Agent or any other Party shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration or any holder of Company Equity Awards for any amounts payable pursuant to Section 1.8 delivered in respect of such Share or Company Equity Awards, respectively, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Tax Legal Requirements, such withheld amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.Article I.
Appears in 1 contract
Sources: Merger Agreement (PlayAGS, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which such holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which such holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time but prior to the Effective Time, 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 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration payable pursuant to Section 2.5 (such deposits together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Section 2 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated other than the holders of Excluded Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.5(a)(iv), (Ai) in the case of holders of record of certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (ii) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable and payable in Shares, a customary “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of Certificatescertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them. None of Parent, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor or the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective TimeClosing Date, the stock transfer books of the Company with respect to the Shares shall be closed closed, and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)2.9), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (RayzeBio, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second business day after) the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (wi) in obligations of or guaranteed by the United States of America, ; (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, ; (yiii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, ; or (ziv) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, ; and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or Company Restricted Shares, or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or Company Restricted Shares, or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Celgene Corp /De/)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary At the Effective Time (subject to comply with its and Purchaser’s obligations hereunderSection 2.8(d)), Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Shares or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares and Company Warrants to receive the aggregate cash Merger Consideration funds to which holders of such shares and Company Warrants shall become entitled pursuant to Section 2.51.5 and Section 1.9. As At the Effective Time (subject to Sections 1.8 and when necessary to comply with its and Purchaser’s obligations hereunder1.9), Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.5 and Section 1.9 (with respect to Company Warrants with respect to which the holder of such Company Warrant has signed a warrant cancellation agreement that is outstanding immediately prior to the Effective Time) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by Moody’s ▇▇▇▇▇’▇ Investors ▇▇rs Service, Inc. or S&P Global, Inc.Standard & Poor's Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s 's acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 1.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares Share is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Certificates, Book-Entry Shares or Company Warrants (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without them or consideration that may be payable in connection with any interest thereonCompany Warrants. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share or any holder of Company Warrants for the consideration delivered in respect of such Company Warrant to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Corporation and Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Shares or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Sources: Merger Agreement (XRS Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) ), for the holders of Shares to receive the aggregate Offer Price funds to which such holders of such Shares shall become entitled pursuant to Section 1.1(h2.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.53.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits with the Depository Agent and with the Paying Agent, collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Article 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with pursuant to Section 2.6(f3.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable not held through DTC, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with pursuant to Section 2.6(f3.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to portion of the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and Payment Fund not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser and the Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any holder of Shares or Company Options such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxestherefrom under applicable Tax Laws. Each To the extent that such withholding agent shall use commercially reasonable efforts to reduce or eliminate any amounts are so deducted and withheld, each such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(d)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior As soon as reasonably practicable after the date of this Agreement, and in any event prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate appoint a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second (2nd) business day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash as and when required in amounts sufficient to make the prompt payment of the aggregate Offer Price payable pursuant to Section 1.1(h) ). On or prior to the Closing Date, Parent shall deposit, or shall cause to be deposited with the Paying Agent cash as and when required in amounts sufficient to pay make prompt payment of the aggregate Merger Consideration payable pursuant to Section 2.5 (togethertogether 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 aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. In no event, however, shall such investments delay the receipt by the former holders of Shares or Company Warrants of the Merger Consideration, as applicable, or otherwise impair such holders’ rights hereunder. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) ), Section 2.5 and Section 2.5, as applicable2.8, Parent shall, or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fundtimes, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments promptly as and when required pursuant to Section 1.1(h) ), Section 2.5 and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent2.8.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate or certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of Parent and the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration Consideration, that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each Notwithstanding any other provision of this Agreement, each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, the Paying Agent and the Depository Agent and their respective Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct be deducted and withholdwithheld) from from, as applicable, the Offer Price, or the Merger Consideration payable to any holder of the Shares or any holder of Company OptionsShares, Company RSUs Options or Company Warrants or the recipient of any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation, which the Parties agree shall be satisfied by the provision of the letter of transmittal described in Section 1.1(e) Section 2.6(b), as applicable. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Options or Company RSUs Warrants or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Constellation Pharmaceuticals Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall appoint the Company’s transfer agent or designate a bank or trust company reasonably acceptable to the Company to act as the exchange agent (the “Depository Exchange Agent”) for the holders purposes of exchanging Shares to receive represented by a certificate evidencing such Shares (the aggregate Offer Price “Certificates”) and Book-Entry Shares for the Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.3. On or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderClosing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent Exchange Agent, cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.3(a)(iii) (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Pending its disbursement in accordance with this Section 1.4, the Payment Fund shall be invested by the Paying Agent as Exchange Agent, if so directed by the Surviving Corporation; provided that any such investments investment, if made, shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Global Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) the Certificates or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.3, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(g), if applicable) to the Paying Exchange Agent, or or, in the case of Book-Entry Shares, a customary agent’s message generated in accordance with respect to Book-Entry SharesThe Depository Trust Company’s (“DTC”) procedures, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares Shares, as applicable, in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.3. Upon surrender to the Paying Exchange Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(g), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive receive, in exchange therefor therefor, the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.4(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.4, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.3.
(c) Notwithstanding the foregoing, where Book-Entry Shares are held through DTC or any similar electronic registration system, the Exchange Agent shall process such Shares in accordance with DTC’s customary procedures for book-entry transfer and payment. In connection therewith, holders whose Shares are maintained electronically need not deliver any physical certificate or executed letter of transmittal. Instead, an electronic “agent’s message” or equivalent instruction as provided by DTC, subject to applicable DTC rules and procedures, or such other evidence, if any, as the Exchange Agent may reasonably request shall serve as confirmation of the surrender of such Book-Entry Shares and trigger the payment of the Merger Consideration.
(d) At any time following twelve (the 12) months after -month anniversary of the Effective Time, Parent shall be entitled to require the Paying Exchange Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.3) which had been made available to the Paying Exchange Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Exchange Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Exchange Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled canceled and exchanged as provided in this Agreement.
(ef) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Exchange Agent to deduct and withhold) from the Offer Price, the Merger Consideration any amount payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable Person pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodywithhold. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodydeducted or withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.4(f)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a reputable U.S. bank or trust company reasonably acceptable to the Company to act as depositary agent (the “Depository Agent”) for the holders of Shares Company Stockholders entitled to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as the paying agent for the Company Stockholders entitled to receive Merger Consideration pursuant to Section 2.6 (the “Paying Agent”) for ). Parent shall pay, or cause to be paid, all fees and expenses of the holders of Shares Paying Agent. The agreement entered into prior to receive the aggregate cash Merger Consideration Closing pursuant to which holders of such shares Parent shall become entitled pursuant appoint the Paying Agent (the “Paying Agent Agreement”) shall be in form and substance reasonably acceptable to Section 2.5the Company. As and when necessary to comply with its and Purchaser’s obligations hereunderAt or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in immediately available funds in U.S. dollars an amount sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h1.1(b) and to pay the aggregate Merger Consideration, Option Consideration, RSU Consideration, and PSU Consideration payable pursuant to Section 2.5 2.6 and Section 2.9 (other than such Option Consideration, RSU Consideration, and PSU Consideration payable through payroll in accordance with Section 2.9(d)) (such deposits together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration, Option Consideration, RSU Consideration and PSU Consideration in the MergerMerger as provided herein (other than such Option Consideration, RSU Consideration, and PSU Consideration payable through payroll in accordance with Section 2.9(d)). The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving CorporationP▇▇▇▇▇; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent ; provided, further, that (i) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isOffer Price in accordance with Section 1.1(b) and the Merger Consideration in accordance with Section 2.6, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares (other than Excluded Shares) that are (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through the Depository Trust Company (“DTC”), in the case of each case of clauses (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms of the conditions of the Paying Agent Agreement), as applicable and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as part of such Shares the Merger pursuant to Section 2.52.6. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 2.6.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof thereof), together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may be reasonably request pursuant to the terms and conditions of the Paying Agent Agreement) and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, DTC’s customary surrender procedures and such other documents procedures as may be required agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to the instructionsSection 2.7(c), the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.7, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.52.6.
(ce) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent Agent, or the Depository Agent any other applicable withholding agent, to deduct and withhold) from any consideration payable pursuant to this Agreement or the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Shares, Company Options, Company RSUs RSU Awards or PSU Awards or any other consideration otherwise payable pursuant to this Agreement such amounts Taxes as it is required by any applicable Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. If any deduction or withholding obligation may be avoided or reduced by a payee providing information or documentation to the applicable payor, such payor shall make a written request for such information from such payee and use commercially reasonable efforts to avoid or reduce such deduction or withholding obligation (including by providing the payee the opportunity to provide applicable Tax forms, such as an IRS Form W-9 or an appropriate IRS Form W-8, as applicable). To the extent that any amounts are so deducted or withheld and are timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.7(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section Article 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) ), for the holders of Shares to receive the aggregate Offer Price funds to which such holders of such Shares shall become entitled pursuant to Section 1.1(h2.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.53.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits with the Depository Agent and with the Paying Agent, collectively, the “Payment Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Article 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable Shares, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser and the Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold from any amounts (or cause the Paying Agent or the Depository Agent to deduct and withholdincluding any CVRs in respect of Shares) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement to any holder of Shares, Company Options, Company RSU Awards or Company ESPP account balances such amounts as it is required by any Legal Requirement to deduct and withhold therefrom under applicable Tax Laws; provided, however, that except for payments to current or former employees of the Company with respect to Taxes. Each Company Options and Company RSU Awards, before making any such deduction or withholding, Purchaser shall provide to the Company notice of any applicable payor’s intention to make such deduction or withholding, which notice shall include the authority, basis and method of calculation for the proposed deduction or withholding agent and shall use provide at least a commercially reasonable efforts period of time before such deduction or withholding is required in order for the applicable recipient to reduce obtain reduction of or eliminate any relief from such deduction or withholding from the applicable Governmental Body or execute and deliver to or file with such Governmental Body or Purchaser such affidavits, certificates and other documents to afford reduction of or relief from such deduction or withholding. To the extent that such amounts are so deducted and withheld, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months the 180th day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(f) If In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed Certificate, Certificate a check in the applicable Merger Consideration amount (after giving effect to be paid any required tax withholdings as provided in respect Section 2.6(e)) equal to the number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the per Share Merger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferClosing Date, Parent shall (i) designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as paying agent (the “Paying Agent”) for the holders of Shares shares of Company Stock to receive the aggregate cash Merger Consideration Consideration, the aggregate Series D Liquidation Preference and the aggregate Series E Liquidation Preference, as applicable, to which holders of such shares of Company Stock shall become entitled pursuant to Section 2.51.5 and (ii) enter into an agreement with the Paying Agent, in a form reasonably acceptable to the Company (the “Paying Agent Agreement”). As and when necessary to comply with its and Purchaser’s obligations hereunderOn the Closing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent an amount in cash sufficient to make pay the payment sum of the aggregate Offer Price Merger Consideration, the aggregate Series D Liquidation Preference and the aggregate Series E Liquidation Preference payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Merger Consideration, the aggregate Series D Liquidation Preference and the aggregate Series E Liquidation Preference, as applicable, in the Offer Merger to the applicable holders of Company Stock, except as otherwise expressly provided for in this Agreement; provided, that any interest or other income resulting from investment of the Payment Fund that causes the Payment Fund to exceed the sum of the aggregate Merger Consideration, the aggregate Series D Liquidation Preference and Merger Consideration the aggregate Series E Liquidation Preference payable pursuant to Section 1.5 shall be delivered to Parent by the Paying Agent in accordance with the Mergerterms of the Paying Agent Agreement. The For the avoidance of doubt, Parent shall not be required to deposit any funds related to the CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. Pending its disbursement in accordance with this Section 1.6, the Payment Fund shall be invested by the Paying Agent as directed by Parent in accordance with the Surviving CorporationPaying Agent Agreement; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To In the extent that (i) there are any losses with respect to any such investments or (ii) event the Payment Fund has diminished for any reason below is insufficient to pay the level required for aggregate Merger Consideration, the Depository Agent or Paying Agent to make prompt cash payment aggregate Series D Liquidation Preference and the aggregate Series E Liquidation Preference payable pursuant to Section 1.1(h) and Section 2.51.5, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the shortfall that is required to make such payment. No investment losses resulting from investment of the funds deposited with the Paying Agent shall diminish the rights of any holder of shares of Company Stock to receive the Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentprovided herein.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five (5) business days thereafter), Parent and the Surviving Corporation shall cause the Paying Agent to be delivered deliver to each Person who was, at immediately prior to the Effective Time, a holder of record of shares of (i) Shares Company Stock represented by a certificate evidencing such Shares shares of Company Stock (“Certificated Shares”) or (ii) Book-Entry Shares, whoShares (other than, in each case of clause (i) and (ii), Excluded Shares or Dissenting Shares, which shall be treated in accordance with Section 1.7), which holder, in each case of (i) and (ii) was entitled to receive either the Merger Consideration Consideration, the Series D Liquidation Preference or the Series E Liquidation Preference, as applicable, pursuant to Section 2.51.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the stock certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(h), if applicable) to the Paying Agent, or a customary agent’s message or, with respect to Book-Entry Shares, a customary agent’s message, and (B) instructions (including the requirement for each holder of shares of Company Stock to provide IRS Form W-9 or applicable series of IRS Form W-8) for use in effecting the surrender of the Certificates or and Book-Entry Shares to the Paying Agent, as applicable, in exchange for payment of the Merger Consideration issuable and payable in respect of such Shares shares of Company Common Stock, the Series D Liquidation Preference payable in respect of such Series D Preferred Stock or the Series E Liquidation Preference payable in respect of such Series E Preferred Stock, as applicable, pursuant to Section 2.5. 1.5.
(c) Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(h), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required by the Paying Agent pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive receive, in exchange therefor therefor, the Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, for each Certificated Share share of Company Stock formerly represented by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares so surrendered or transferred shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate (or effective affidavits of loss in lieu thereof) so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.6(b) under any circumstance. Payment of the applicable Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(c), each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, as contemplated by Section 2.51.5 or, in the case of Dissenting Shares, the consideration contemplated by Section 1.7.
(cd) Notwithstanding the foregoing, the Persons who were, immediately prior to the Effective Time, holders of Book-Entry Shares (other than (i) Excluded Shares or (ii) Dissenting Shares, which shall be treated in accordance with Section 1.7) held, directly or indirectly, through The Depository Trust Company (“DTC”) shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, that such holder is entitled to receive pursuant to Section 1.5. With respect to such Book-Entry Shares held, directly or indirectly, through 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 Book-Entry 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 aggregate Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(e) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it Parent any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not claimed by or disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders who have not complied with this Section 1.6 prior to such delivery shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding any provision of this Agreement to the foregoingcontrary, neither none of Parent, Merger Sub, the Company, the Surviving Corporation nor or the Paying Agent shall be liable to any holder of Certificated Shares Person for Merger Consideration, Series D Liquidation Preference or Book-Entry Shares for the Merger Consideration Series E Liquidation Preference properly delivered in respect of such Share to a public official pursuant to any applicable state, federal or other abandoned property, escheat or other similar Legal RequirementsRequirement. Any amounts remaining unclaimed by If any Certificate or Book-Entry Share has not been surrendered prior to the date on which the Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, in respect of such holders at such time at which such amounts Certificate or Book-Entry Share would otherwise escheat to or become the property of any Governmental Body shall becomeBody, any Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, in respect of such Certificate shall, to the extent permitted by applicable Legal RequirementsRequirement, immediately prior to such date, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all subject to the claims or interest of any Person previously holder of shares of Company Stock entitled theretoto payment of Merger Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, who has not complied with this Section 1.6 prior to such date.
(df) At The Merger Consideration paid or payable in respect of shares of Company Common Stock, the close Series D Liquidation Preference paid or payable in respect of business on shares of Series D Preferred Stock and the day Series E Liquidation Preference paid or payable in respect of shares of Series E Preferred Stock, each in accordance with the terms of this Section 1, shall be deemed to be paid in full satisfaction of all ownership rights in such shares of Company Stock and, at the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Stock that were outstanding immediately prior to the Effective Time on the records of the CompanySurviving Corporation. From and after the Effective Time, the holders of the Shares shares of Company Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares of Company Stock except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and PurchaserParent, Merger Sub, the Paying Agent, the Rights Agent, and each of their respective Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct be deducted and withholdwithheld) from the Offer PriceMerger Consideration (including any Milestone Payment in respect of the CVR), the Merger Consideration payable to any holder of Series D Liquidation Preference or the Shares or any holder of Company OptionsSeries E Liquidation Preference, Company RSUs as applicable, or any other consideration otherwise amounts payable pursuant to this Agreement or the CVR Agreement, such amounts as it is required by any Legal Requirement to deduct and withhold with respect to TaxesTaxes (including with respect to any amounts treated as interest under Section 483 of the Code). Each such withholding agent shall use commercially reasonable efforts Except with respect to reduce compensatory amounts, if any of the Surviving Corporation, Parent, Merger Sub, Paying Agent, Rights Agent, or eliminate their respective Affiliates determines that it is required to deduct and withhold any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 amount payable pursuant to this Agreement or the appropriate series of IRS Form W-8CVR Agreement, then it shall reasonably cooperate with the Company to obtain any affidavits, certificates and other documents as applicable, or any similar information. Each such withholding agent shall take all action that may reasonably be necessary expected to ensure that any such amounts so withheld are timely and properly remitted afford to the appropriate Governmental BodyCompany and its stockholders reduction of or relief from such deduction or withholding. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration Consideration, the Series D Liquidation Preference or the Series E Liquidation Preference, as applicable, payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration Consideration, Series D Liquidation Preference or Series E Liquidation Preference, as applicable, to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company (which shall be reasonably acceptable to the Company Company) to act as paying agent (in the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent Merger (the “Paying Agent”) for ). Promptly after the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderEffective Time, Parent shall deposit, or shall cause to be deposited, deposit with the Depository Paying Agent cash sufficient in an amount equal to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration cash payable pursuant to Section 2.5 (togethera)(iii) and Section 6.1(a), excluding amounts applicable to Appraisal Shares. The cash amount so deposited with the Paying Agent, together with any dividends or distributions received by the Paying Agent with respect to such shares, are referred to collectively as the “Payment Exchange Fund”.” The cash in the Exchange Fund shall be invested by the Paying Agent as directed by Parent in money market funds or similar short-term liquid investments. In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 2.5(a)(iii) and Section 6.1(a), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the deficiency in the amount required to make such payment. Parent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Company Common Stock, and Company Options and (ii) applied promptly to making the payments pursuant to Section 2.5(a)(iii) and Section 6.1(a). The Payment Exchange Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such fund payments pursuant to Section 1.1(h2.5(a)(iii) and Section 2.56.1(a), except as applicable. Any interest and other income resulting from such investment (if any) expressly provided for in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but and in any event no event later more than five four (54) business days thereafterafter the Effective Time), Parent will instruct the Surviving Corporation shall cause Paying Agent to be delivered promptly mail to each Person who wasthe Persons who, at immediately prior to the Effective Time, a holder were record holders of record certificates representing shares of (i) Shares represented by a certificate evidencing such Shares Company Common Stock (“Certificated SharesStock Certificates”) or (ii) uncertificated shares of Company Common Stock represented by Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be transmittal in reasonable and customary form and shall containing such provisions as Parent may reasonably specify (including, in the case of holders of Stock Certificates, a provision confirming that delivery of Stock Certificates shall be effected, and risk of loss and title to the Certificated Shares Stock Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Stock Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares), and (Bii) instructions for use in effecting the surrender of the Stock Certificates and Book-Entry Shares. Upon surrender of a Stock Certificate or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender Share to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Sharesfor payment, together with such a duly executed letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to by the instructionsPaying Agent or Parent, (A) the holder of such Certificated Shares Stock Certificate or Book-Entry Shares Share shall be entitled to receive in exchange payment therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and consideration deliverable to such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it2.5(a)(iii), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.,
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) ), for the holders of Shares to receive the aggregate Offer Price funds to which such holders of such Shares shall become entitled pursuant to Section 1.1(h2.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.53.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits with the Depository Agent and with the Paying Agent, collectively, the “Payment Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Article 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable Shares, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser and the Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold from any amounts (or cause the Paying Agent or the Depository Agent to deduct and withholdincluding any CVRs in respect of Shares) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement to any holder of Shares, Company Options, Company RSU Awards or Company ESPP account balances such amounts as it is required by any Legal Requirement to deduct and withhold therefrom under applicable Tax Laws; provided, however, that except for payments to current or former employees of the Company with respect to Taxes. Each Company Options and Company RSU Awards, before making any such deduction or withholding, Purchaser shall provide to the Company notice of any applicable payor’s intention to make such deduction or withholding, which notice shall include the authority, basis and method of calculation for the proposed deduction or withholding agent and shall use provide at least a commercially reasonable efforts period of time before such deduction or withholding is required in order for the applicable recipient to reduce obtain reduction of or eliminate any relief from such deduction or withholding from the applicable Governmental Body or execute and deliver to or file with such Governmental Body or Purchaser such affidavits, certificates and other documents to afford reduction of or relief from such deduction or withholding. To the extent that such amounts are so deducted and withheld, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a the bank or trust company set forth on Section 1.6(a) of the Company Disclosure Schedule or such other bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Paying Agent”) ), pursuant to an agreement reasonably acceptable to the Company (the “Paying Agent Agreement”), for the holders of Shares to receive the aggregate Offer Price Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.5. On or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderClosing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 and the aggregate Option Merger Consideration payable pursuant to Section 1.7(a) with respect to Non-Withholding Options (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration and the aggregate Option Merger Consideration (with respect to Non-Withholding Options) in the Merger, except as expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 . Any interest or P-1 or better income produced by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent will be payable to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicableMerger Sub, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5Corporation, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentdirects.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), Parent or the Surviving Corporation shall cause the Paying Agent to be delivered mail or otherwise disseminate to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or ), (ii) Book-Entry SharesShares or (iii) Non-Withholding Options, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.5 or the Option Merger Consideration pursuant to Section 1.7(a), (A) a form (or forms) of letter of transmittal, transmittal which shall be in reasonable and customary form form(s) reasonably acceptable to the Company and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, ; and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor therefor, and the Paying Agent shall pay, in accordance with the Paying Agent Agreement, to such holder after such surrender, the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or Merger Sub and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.5 and with respect the aggregate Option Merger Consideration to which holders of Non-Withholding Options shall become entitled pursuant to Section 1.7(a)) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares or to holders of Non-Withholding Options (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, or with respect to the Option Merger Consideration that may be payable to such holders of Non-Withholding Options, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share, or any holder of a Non-Withholding Option for the Option Merger Consideration delivered in respect of such Non-Withholding Option, to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed closed, and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent its payroll agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action Any amounts that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made. All Outstanding Company Options that are not Non-Withholding Options are listed on Section 1.6(e) of the Company Disclosure Schedule.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Sources: Merger Agreement (Gaming Partners International CORP)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient in U.S. dollars sufficient, when taken together with the Cash on Hand, to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5; provided, that, the Company shall, at the written request of Parent, deposit with the Paying Agent at the Closing, an amount of the Company’s cash on hand as requested by Parent (together“Cash on Hand”) (the total cash deposited with the Paying Agent, the “Payment Fund”); provided that such request shall be at least three (3) business days prior to the expected Closing Date. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service▇; provided that (i) such investments shall be solely in obligations of, Inc. or S&P Globalobligations fully guaranteed as to principal and interest by, Inc., respectivelythe U.S. government, (yii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment shall have a maturity exceeding three ninety (390) months. To the extent that days, and (iiii) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.5, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are entitled to receive Merger Consideration pursuant to Section 1.5(a)(iii), and (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through DTC, in the case of each case of clause (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), as applicable, and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled1.5. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed letters of transmittal and other appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in accordance with the letter of transmittal and accompanying instructions in connection with the surrender of such Book-Entry Shares (and such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement) and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to Section 1.6(c), the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(d), each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable amount of cash, without interest, into which such Shares represented by such Certificate or Book-Entry Share have been converted pursuant to Section 1.5. The Merger Consideration as contemplated by paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 2.51.6(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares.
(ce) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration Consideration, without interest, that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them. None of Parent, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor or the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to assist the applicable payee with reducing or obtaining an exemption from such withholding obligation. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.Article I.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which such holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which such holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time but prior to the Effective Time, 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 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration payable pursuant to Section 2.5 (such deposits together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this Section 2 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated other than the holders of Excluded Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.5(a)(iv), (Ai) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (ii) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable and payable in Shares, a customary “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective TimeClosing Date, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)2.9), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Turning Point Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Closing Amounts to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and the holders of shares of Class A-1 Convertible Preferred Stock to receive the aggregate amounts to which holders of such Shares shall become entitled to pursuant to Section 2.9 and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Closing Amounts to which such holders of such shares Table of Contents Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second business day after) the Offer Acceptance Time, Parent shall depositcause Payor to, or shall cause to be depositedand Payor shall, deposit with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Closing Amounts payable pursuant to Section 1.1(h1.1(i) and Section 2.9. Promptly after the Closing Date (and in any event no later than the second business day after), Parent shall cause Payor to, and Payor shall, deposit with the Paying Agent cash sufficient to pay the aggregate Merger Consideration Closing Amounts payable pursuant to Section 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Closing Amounts in the Offer and the Merger Consideration in the Mergerand pursuant to Section 2.9. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Table of Contents Parent, Payor, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it or Payor any funds (with respect to the aggregate Merger Consideration Closing Amounts to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the any holders of the Shares and any shares of Class A-1 Convertible Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares or any shares of Class A-1 Convertible Preferred Stock except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent Parent, Payor and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Rights Agent, the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs RSUs, Company PSUs, Class A-1 Convertible Preferred Stock, the Company Warrant or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes; provided, however, no deduction or withholding shall be made from such amounts payable pursuant to this Agreement or the CVR Agreement pursuant to Section 1445 of the Code. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To Table of Contents the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs RSUs, Company PSUs, Class A-1 Convertible Preferred Stock, the Company Warrant or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Cash Amount to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) at the Offer Acceptance Time and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Cash Amount to which holders of such shares Shares shall become entitled pursuant to Section 2.52.5 at the Effective Time. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make payment of the payment aggregate Cash Amount payable as part of the aggregate Offer Price payable pursuant to Section 1.1(h) and ). On or prior to pay the Closing Date, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to make payment of the aggregate Cash Amount payable as part of the aggregate Merger Consideration payable pursuant to Section 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). For the avoidance of doubt, neither Parent nor Purchaser shall be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement and no such deposit will be deemed part of the Payment Fund. The Payment Fund shall not be used for any purpose other than to pay the aggregate Cash Amount payable as part of the aggregate Offer Price in the Offer and the aggregate Cash Amount payable as part of the Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionone billion dollars, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicableParent shall, Parent or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 6 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, the Paying Agent, the Rights Agent or the Depository Agent, as the case may be, shall be entitled to deduct and withhold (withhold, or cause the Paying Agent to be deducted and withheld, from any amounts or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such Any amounts so deducted and withheld are timely and properly remitted paid over to the appropriate applicable Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank Computershare Trust Company, N.A. (or trust company reasonably acceptable such other nationally recognized paying agent agreed to between Parent and the Company Company) to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as paying agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.51.5. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable Closing Amount in respect of all the Shares (other than Dissenting Shares) outstanding immediately prior to the Closing that are entitled to receive the Merger Consideration pursuant to Section 1.1(h) 1.5 and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 Warrant Shares (together, the “Payment Fund”). For the avoidance of doubt, none of Parent or Merger Sub shall be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent▇.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter)days) after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 1.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 Consideration, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.51.5.
(c) At any time following the date that is twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, Rights Agent, Parent, Merger Sub, and the Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold (or cause the Paying Agent from any amounts payable pursuant to this Agreement or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable CVR Agreement or any other ancillary agreement hereto or thereto to any holder of the Shares or any holder of Shares, Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Company Warrants such amounts as it is required by any Legal Requirement to deduct and or withhold with respect to Taxestherefrom under applicable Legal Requirements. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of under this Agreement, the CVR Agreement or any other ancillary agreement hereto or thereto as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.Article I.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As and when necessary to comply with its and Purchaser’s obligations hereunderAt the Closing, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Depository Paying Agent funds that, when taken together with available cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and Company that is deposited with the Paying Agent at the Effective Time, are sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.5 in respect of the Shares (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser shall, or shall cause the MergerSurviving Corporation to, promptly replace or restore the lost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; 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 in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the funds shall be paid to Parent. The Payment Fund has diminished shall not be used for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) other purpose. The Surviving Corporation shall (and Section 2.5, as applicable, Parent or shall cause the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund isto) pay all charges and expenses, at all times during the duration including those of the Payment FundPaying Agent, maintained at a level sufficient for in connection with the Depository Agent exchange of Shares and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess payment of the amounts payable pursuant to Section 2.6 shall be for applicable Merger Consideration in respect of the benefit of Parent and promptly returned to ParentShares.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, Parent and the Surviving Corporation shall cause the Paying Agent to be delivered mail to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.6(a)(iii), (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying AgentAgent or, or a customary agent’s message with respect to in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicableA) or Book-Entry SharesCertificates, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, or (B) receipt of an “agent’s message” by the instructionsPaying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificated Shares Certificates or Book-Entry Shares Shares, as applicable, shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share properly surrendered and formerly evidenced by such Certificates or Book-Entry ShareShares, as applicable, and such Certificates and Book-Entry Shares Shares, as applicable, shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof, and all Merger Consideration paid upon surrender of such Certificates or Book-Entry Shares shall be deemed to have been paid, as the case may be, in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is are registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer as deemed by the Surviving Corporation in its reasonable discretion and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve the one hundred eightieth (12180th) months day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration properly delivered in respect of any such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at If any Certificate or Book-Entry Share has not been surrendered or transferred prior to the date on which such amounts any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Body Body, then any such Merger Consideration in respect of such Certificate or Book-Entry Share shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designeeCorporation, free and clear of all any claims or interest of any Person previously entitled thereto.
(d) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares.
(e) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates any Certificate or Book-Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasonsurrender or transfer, they as applicable, it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7.
(ef) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement Agreement, such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce To the extent withheld or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted paid over to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Legal Requirements, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have has been lost, stolen or destroyed, then, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which includes an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent to their reasonable satisfaction from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), shall issue in exchange for such lost, stolen or destroyed Certificate, Certificate an amount (after giving effect to any required Tax withholdings as provided in Section 2.7(f)) equal to the applicable Merger Consideration to be paid in respect number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As The paying agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Prior to or promptly following the Offer Acceptance Time (but in any event on the same Business Day), Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided provided, that such investments shall be (wi) in obligations of or guaranteed by the United States of America, (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (yiii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, billion or (ziv) in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition acquisition, or a any combination of the foregoing andforegoing, and in any such case, no such instrument shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent), or a customary agent’s message with in respect to of Book-Entry Shares, and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None , and none of Parent, Purchaser or and the Surviving Corporation shall have any liability for any such Taxes in the transfer and other similar Taxes circumstances described in this Section 2.6(b) under any circumstance). Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official any Governmental Body pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, the Surviving CorporationParent, Parent and Purchaser, and their Affiliates, the Surviving Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any holder of Shares or Company Options such amounts as it is required by any Legal Requirement to deduct and or withhold therefrom under applicable Tax Legal Requirements; provided, however, that except for payments to current or former employees of the Company with respect to Taxes. Each Company Options, before making any such deduction or withholding, Purchaser shall provide to the Company notice of any applicable payor’s intention to make such deduction or withholding agent and such notice shall use include the authority, basis and method of calculation for the proposed deduction or withholding and shall be given at least a commercially reasonable efforts period of time before such deduction or withholding is required in order for the Company to reduce obtain reduction of or eliminate any relief from such deduction or withholding from the applicable Governmental Body or execute and deliver to or file with such Governmental Body or Purchaser such affidavits, certificates and other documents to afford to the Company and its stockholders reduction of or relief from such deduction or withholding. To the extent that such amounts are so deducted and withheld, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that such Certificate, or by a representative of that holder, claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Senomyx Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as an agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration consideration to which such holders of such shares shall become entitled pursuant to Section 2.52.1(f) and Section 3.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(f) and to pay Section 3.5 (such deposits with the aggregate Merger Consideration payable pursuant to Section 2.5 (togetherPaying Agent, collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided that any interest or income produced by investments with respect to the Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations property of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) monthsParent. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished fund diminishes for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) of the aggregate Offer Price in the Offer and Section 2.5, as applicablethe aggregate Merger Consideration in the Merger, Parent or the Surviving Corporation shall promptly replace or restore restore, or cause to be replaced or restored, the cash in the Payment Fund lost portion of such fund so as to ensure that the Payment Fund it is, at all times during the duration of the Payment Fundtimes, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayments.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable Shares, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.63.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry have been converted pursuant to Section 2.53.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which that had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the Paying Agent, Parent, Merger Sub and the Surviving Corporation or any Acquired Company, the Surviving Corporation, Parent and Purchaser, and their Affiliatesas applicable, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxestherefrom under applicable Tax Laws. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Merger Sub and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As Without limiting the generality of Sections 1.1(j) and 9.11, as and when necessary to comply with its needed after each of the Offer Acceptance Time and Purchaser’s obligations hereunderEffective Time, Parent shall depositshall, or shall take all steps necessary to enable and cause to be depositedPurchaser to, deposit with the Depository Paying Agent cash sufficient to make the payment all of the aggregate Offer Price payable funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to Section 1.1(h) the Offer and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 be paid in respect of the Shares, as applicable (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser shall promptly replace or restore the Mergerlost 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 Paying Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the Surviving Corporation; provided payments required by this Article 2 or affect the amount of Merger Consideration payable in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation funds shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration become part of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) any amounts in excess of the amounts payable pursuant to under Section 2.6 2.6(a) shall be for the benefit of Parent and promptly returned to Parenteither Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares and the payment of the Merger Consideration in respect of the Shares.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, Parent and the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.6 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or Booknon-certificated Shares represented by Book Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Book Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Book Entry ShareShares, and such Certificates and Book-Book Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Book Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Book Entry Shares shall only be made to the Person in whose name such Book-Book Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve the one hundred and eightieth (12180th) months day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Book Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaw) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Book Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Book Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat Law.
(d) No dividends or other distributions with respect to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property capital stock of the Surviving Corporation with a record date on or its designee, free and clear of all claims or interest after the Effective Time shall be paid to the holder of any Person previously entitled theretounsurrendered Certificates or Book Entry Shares.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal RequirementsLaw. If, after the Effective Time, Certificates any Certificate or Book-Book Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasontransfer, they it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7. No Merger Consideration shall be paid to the holder of any unsurrendered Certificate or Book Entry Share until the surrender of such Certificate or Book Entry Share in accordance with this Section 2.7.
(ef) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement Law to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate Taxes and any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely shall be promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted paid to the appropriate Governmental BodyBody in accordance with all applicable Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(fg) If In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed CertificateCertificate a check in the amount (after giving effect to any required Tax withholdings as provided in Section 2.7(f)) equal to the number of Shares represented by such lost, stolen or destroyed Certificate that have been surrendered multiplied by the per Share Merger Consideration.
(h) None of Parent, Purchaser, the applicable Merger Consideration Surviving Corporation or the Paying Agent shall be liable to be paid any Person in respect of any cash from the Certificated Shares formerly represented Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share has not been surrendered prior to the 24-month anniversary of the Effective Time (or, if earlier, immediately prior to the date on which the Merger Consideration in respect of such Certificate or Book Entry Share would otherwise escheat to or become the property of any Governmental Body), any such Merger Consideration in respect of such Certificate or Book Entry Share shall, to the extent permitted by such Certificateapplicable Law, as contemplated by this Section 2become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate and enter into a customary exchange agreement with a bank or trust company reasonably acceptable to company, selected by Parent with the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and Company’s prior approval, to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent or Purchaser shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than purpose. To the extent the amount of the Payment Fund is below the level required to pay make prompt payment of the aggregate Offer Price Merger Consideration for any reason (including in the Offer event any Dissenting Shares cease to be Dissenting Shares), Parent and Merger Consideration in the MergerSurviving Corporation shall promptly replace or restore the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Any investment of the Payment Fund shall in all events be invested by limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of AmericaU.S. government, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion10 billion (based on the most recent financial statements of such bank that are then publicly available). No such investment or loss thereon shall affect the amounts payable to any former holder of Shares pursuant to this Section 2.
(b) Prior to the Effective Time, or Parent and the Company will cooperate to establish procedures with the Paying Agent and the Depository Trust Company (z“DTC”) in money market funds having a rating in with 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 shall have a maturity exceeding three (3) months. To the extent objective that (i) there are any losses with respect if the Closing occurs at or prior to any 11:30 a.m., Eastern time, on the Closing Date, then the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (A) the number of shares of Company Common Stock (other than Company Owned Shares and Dissenting Shares) held of record by DTC or such investments or nominee immediately prior to the Effective Time; multiplied by (B) the Merger Consideration (such amount, the “DTC Payment”); and (ii) if the Payment Fund has diminished for any reason below Closing occurs after 11:30 a.m., Eastern time, on the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5Closing Date, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and then the Paying Agent will transmit the DTC Payment to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of DTC or its nominees on the amounts payable pursuant to Section 2.6 shall be for first Business Day after the benefit of Parent and promptly returned to ParentClosing Date.
(bc) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Aincluding in connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form reasonably acceptable to the Company and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares pursuant to such letter of transmittal. Each holder of Shares (including in exchange for connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) that have been converted into the right to receive the Merger Consideration issuable and payable shall promptly upon (i) in respect the case of such Shares pursuant to Section 2.5. Upon represented by a Certificate, surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or reasonably be requested by the instructionsPaying Agent, or (ii) in the holder case of such Certificated Shares or Book-Entry Shares shall Shares, adherence to the procedures set forth in the letter of transmittal and 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), be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share such share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(cd) At any time following twelve six (126) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(ef) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodyremitted, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs Common Stock or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a bond, in such reasonable amount as Parent may direct, as an indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.6(f)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (J2 Global, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the Offer, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderPromptly after the Offer Acceptance Time, 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 1.1(h) and ). 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Depository Agent or the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by P▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, ; provided that (yi) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment or losses thereon shall relieve Parent from making the payments required by Section 1.1(h) and Section 2.5 and (ii) no such investment shall have a maturity maturities exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case of (i) and (ii) ), was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company PSUs, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company PSUs, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months the 180th day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As and when necessary Prior to comply with its and Purchaser’s obligations hereunderthe Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationP▇▇▇▇▇; provided that such investments shall be (wi) in obligations of or guaranteed by the United States of America, (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (yiii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionbillion (based on the most recent financial statements of such bank that are then publicly available), or (ziv) 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 shall have a maturity exceeding three (3) months. To ; provided, further, that no gain or loss thereon shall affect the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) amounts payable hereunder and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as take all actions necessary to ensure that the Payment Fund is, includes at all times during the duration of the Payment Fund, maintained at a level cash sufficient for the Depository Agent to satisfy Parent’s and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentPurchaser’s obligations under this Agreement.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing representing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) case, was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to of Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly represented by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing representing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaw) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaw. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaw, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal RequirementsLaw. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of Person making any payment or vesting any property pursuant to this Agreement, or otherwise with respect to the Company, Offer or the Surviving Corporation, Parent and Purchaser, and their AffiliatesMerger, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company OptionsShares, Company RSUs or any other consideration otherwise payable or that becomes vested (or portions thereof) pursuant to this Agreement Agreement, such amounts as it is required by any Legal Requirement Law to deduct and withhold with respect to Taxes; provided, however, that the parties to this Agreement agree that (i) the Shares are currently “regularly traded on an established securities market” within the meaning of Section 1.1445-2(c)(2) of the Treasury Regulations as of the date hereof, and (ii) the consideration payable or otherwise deliverable pursuant to this Agreement will not be subject to withholding under Section 1445 of the Code or the Treasury Regulations promulgated thereunder so long as (i) the Shares are “regularly traded on an established securities market” within the meaning of Section 1.1445-2(c)(2) of the Treasury Regulations as of immediately before the Closing and (ii) the Purchaser receives an IRS Form W-9 from DHC (and any Affiliate of DHC that tenders Shares pursuant to the Offer) prior to the Closing Date. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental BodyBody by any Person, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid or otherwise included in income to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made. Without limiting the generality of the foregoing, payments in respect of Shares subject to Company Share Awards which become vested pursuant to Section 2.8 shall be made through the payroll of the Company or its Subsidiaries to the extent the Company has Tax withholding obligations with respect thereto.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that such holder or representative of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (AlerisLife Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as (i) agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which such holders of such Shares shall become entitled pursuant to Section 1.1(b) and Section 1.1(h) and to act as (ii) agent (the “Paying Agent”) for (x) the holders of Shares to receive the aggregate cash Merger Consideration to which such holders of such shares Shares shall become entitled pursuant to Section 2.52.5 and (y) the holders of Company Pre-Funded Warrants to receive the aggregate Merger Consideration to which such holders of such Company Pre-Funded Warrants shall become entitled pursuant to Section 2.9. As The agreement pursuant to which Parent shall appoint the Depository Agent and when necessary the Paying Agent shall be in form and substance reasonably acceptable to comply with its the Company. At or promptly after (and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, (A) with the Depository Agent Agent, cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and (B) with the Paying Agent, cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.5 and Section 2.9 (togetherthe amounts deposited pursuant to the foregoing clauses (A) and (B), collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay (x) the aggregate Offer Price in the Offer and (y) the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be in (wI) in obligations of or guaranteed by the United States of America, (xII) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (yIII) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (zIV) in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition acquisition, or (V) a combination of the foregoing foregoing, and, in any such case, no such instrument shall have a maturity exceeding three (3) months. To ; provided further, that in no event shall such investments delay receipt of the Offer Price or Merger Consideration (as applicable) by former holders of Shares or Company Pre-Funded Warrants or otherwise impair such holders’ rights hereunder, and to the extent that (i) there are any losses with respect to any such investments of the Payment Fund, or (ii) the Payment Fund has diminished diminishes for any reason below the level required for to promptly pay the Depository Agent Offer Price or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, Merger Consideration (as applicable) to all former holders of Shares, Parent shall, or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, is at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicablepayments. Any interest and or other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 investments shall be for the benefit of paid to Parent and promptly returned to Parentor its designee, upon demand.
(b) Promptly As soon as reasonably practicable after the Effective Time (but and in any event no event later than five (5) business days thereafterfollowing the Effective Time), the Surviving Corporation shall cause to be delivered to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) ), or (ii) a holder of record of Book-Entry Shares, whothat, in each case (i) and (ii) was entitled either case, were converted into the right to receive the Merger Consideration pursuant to Section 2.5, (Ai) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, effected (and risk of loss and title to the Certificated Shares Certificates shall pass, ) only upon (A) in the case of the Certificates, proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or (B) in the case of Book-Entry Shares, receipt by the Paying Agent of a customary agent’s message with respect to such Book-Entry SharesShares (or such other evidence, if any, as the Paying Agent may reasonably request), and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5Consideration. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required pursuant to the such instructions, the holder of the Shares that were represented by such Certificated Shares Certificates or Book-Entry Shares as of immediately prior to the Effective Time (other than the Dissenting Shares and the Excluded Shares) shall be entitled to receive in exchange therefor the Merger Consideration for payable in respect of each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and or Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration with respect to Shares evidenced by a Certificate is to be made to a Person other than the Person in whose name the surrendered Certificates Certificate formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 formerly represented by the Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to portion of the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares Payment Fund (including all interest and other income received by the Paying Agent in respect of all funds made available to it)the Paying Agent) that has not then been disbursed to holders of Shares that were represented by Certificates or Book-Entry Shares as of immediately prior to the Effective Time, except to the extent representing Excluded Shares or Dissenting Shares, and, thereafter, such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares that were represented by Certificates or Book-Entry Shares as of immediately prior to the Effective Time for the Merger Consideration delivered in respect of such Share Certificates or Book-Entry Shares to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares outstanding prior to the Effective Time shall be closed and thereafter there shall be no further registration of transfers of such Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement, subject to Legal Requirements in the case of Dissenting Shares.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Depository Agent or the Depository Paying Agent to deduct and withhold) from the Offer Price, Price payable to any holder of Shares or the Merger Consideration payable to any holder of the Shares or any holder of Company OptionsShares, Company RSUs Equity Awards or Company Pre-Funded Warrants, or from any other consideration otherwise payable pursuant to this Agreement Agreement, such amounts as it is required by any Legal Requirement to deduct and withhold therefrom with respect to Taxes. Each Except with respect to compensatory withholding, each such withholding agent payor shall use commercially reasonable efforts to provide advance notice to the payee of the intent to deduct or withhold such amount and shall provide for a reasonable opportunity for forms or other documentation that would mitigate, reduce or eliminate any such withholding, including by requesting providing any necessary Tax forms, forms (including a properly completed and validly executed IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, ) or any similar information. Each such withholding agent payor shall take all action actions that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that any amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company OptionsPre-Funded Warrants, holder of Company RSUs Equity Awards or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit affidavit, in form and substance reasonably acceptable to Parent, of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a bond, in such reasonable amount as Parent may directdirect (which shall not exceed the Merger Consideration payable with respect to such Certificate), as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Marinus Pharmaceuticals, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply Concurrently with its and Purchaser’s obligations hereunderor promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At Prior to the close open of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Parent, Purchaser and Surviving Corporation, Parent and Purchaser, and their Affiliates, Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental BodyBody (including amounts deducted and withheld with respect to amounts paid in accordance with Section 2.8(f)), such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Pfizer Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(hSections 1.1(b) and (f) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(hSections 1.1(b) and (f), and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(hSections 1.1(b) and (f) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The paying agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and (f), and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5three business days) business days thereafter)after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.5.
(c) At any time following twelve (12) six months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, the Surviving CorporationParent, Parent and Purchaser, and their Affiliates, the Surviving Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any holder of Shares or Company Stock Awards such amounts as it is required by any Legal Requirement to deduct and or withhold with respect to Taxestherefrom under applicable Legal Requirements. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2Article II.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second Business Day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Merger Consideration payable pursuant to Section 1.1(h) ). Promptly after the Closing Date (and in any event no later than the second Business Day after), 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Merger Consideration in the Offer and the Merger Consideration in the Mergerand pursuant to Section 2.9. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their respective Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs RSUs, Company PSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes; provided that no such deduction or withholding shall be permitted or made pursuant to Section 1445 of the Code. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs RSUs, Company PSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As and when necessary Prior to comply with its and Purchaser’s obligations hereunderthe Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To ; provided, further, that no gain or loss thereon shall affect the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) amounts payable hereunder and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as take all actions necessary to ensure that the Payment Fund is, includes at all times during the duration of the Payment Fund, maintained at a level cash sufficient for the Depository Agent to satisfy Parent’s and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentPurchaser’s obligations under this Agreement.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Options or Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Options or Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Akcea Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(h1.1(b) and (f) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and (f), and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5three business days) business days thereafter)after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the Shares theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the CompanyPaying Agent, the Surviving CorporationParent, Parent and Purchaser, and their Affiliates, the Surviving Corporation shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any holder of Shares, Company Options or RSUs such amounts as it is required by any Legal Requirement to deduct and or withhold therefrom under applicable Legal Requirements; provided, that except (i) with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts amounts treated as compensation for tax purposes or (ii) as a result of the failure of any holder of Shares to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS provide an Internal Revenue Service Form W-9 or the appropriate series of IRS Form W-8, as applicable, Parent shall provide the Company five days’ notice of any applicable payor’s intention to make such deduction or any similar informationwithholding and provide the Company with a reasonable opportunity to obtain reduction of or relief from such deduction or withholding. Each Parent shall reasonably cooperate with the Company to obtain such withholding agent shall take all action that may be necessary to ensure that any reduction or relief from such deduction or withholding. Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2Article II.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of Offer Acceptance Time, Parent shall duly authorize, execute and deliver, and shall ensure that the OfferRights Agent duly authorizes, executes and delivers, the CVR Agreement. Prior to the Closing Date, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) ), for the holders of Shares to receive the aggregate Offer Price funds to which such holders of such Shares shall become entitled pursuant to Section 1.1(h2.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.53.5. As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h2.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 3.5 (togethersuch deposits with the Depository Agent and the Paying Agent, collectively, the “Payment Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The ; provided, however, the Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation▇▇▇▇▇▇; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser or the Paying Agent from making the payments required by this Article 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to this Agreement. Until surrendered as contemplated by this Section 1.1(h) 3.6, each Certificate and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 Book-Entry Share shall be for deemed at any time after the benefit of Parent and promptly returned Effective Time to Parentrepresent only the right to receive the applicable Merger Consideration as contemplated by Section 3.5.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, transmittal in a form reasonably acceptable to the Company (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of holders of record of Book-Entry Shares in exchange for the Merger Consideration issuable and payable in Shares, customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by in accordance with this Section 2.63.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.53.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser and the Surviving Corporation, Parent and Purchaser, Corporation and their Affiliates, respective Affiliates shall be entitled to deduct and withhold from any amounts (or cause the Paying Agent or the Depository Agent to deduct and withholdincluding any CVR in respect of Shares) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement or the CVR Agreement to any holder of Shares, Company Stock Awards or the Company ESPP account balances such amounts as it the payor is required by any Legal Requirement to deduct and withhold with respect therefrom under applicable Tax Laws; provided, however, that except for payments to Taxes. Each current or former employees of the Company Stock Awards or the Company ESPP, before making any such withholding agent deduction or withholding, Purchaser shall use provide to the Company notice of any applicable payor’s intention to make such deduction or withholding, and shall provide a commercially reasonable efforts period of time before such deduction or withholding is required in order for the applicable recipient to reduce obtain reduction of or eliminate any relief from such deduction or withholding from the applicable Governmental Body or execute and deliver to or file with such Governmental Body or Purchaser such affidavits, certificates and other documents to afford reduction of or relief from such deduction or withholding. To the extent that such amounts are so deducted and withheld, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent applicable payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it the Paying Agent, Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.51.6. As The agreement entered into prior to Closing pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) Merger Consideration, Option Consideration, RSU Consideration and to pay the aggregate Merger PSU Consideration payable pursuant to Section 2.5 1.6 and Section 1.9(d) (togetherother than such Option Consideration, RSU Consideration and PSU Consideration payable through payroll in accordance with and subject to Section 1.7(g) and Section 1.9(d)) (the total cash deposited with the Paying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Merger Consideration, Option Consideration, RSU Consideration and PSU Consideration payable pursuant to Section 1.6 and Section 1.9(d), in each case, in accordance with the Offer and Merger Consideration in the Mergerterms of this Section 1.7(a). The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation▇▇▇▇▇▇; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent ; provided, further, that (i) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.6, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly after the Effective Time (but in no event later than five two (52) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through DTC, in the case of each case of clauses (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms of the conditions of the Paying Agent Agreement), as applicable and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as part of such Shares the Merger pursuant to Section 2.51.6. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.6.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof thereof), together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement) and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, DTC’s customary surrender procedures and such other documents procedures as may be required agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to the instructionsSection 1.7(c), the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelledShares. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(ce) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, and thereafter such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be is payable to them upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Paying Agent, the Company, the Surviving Corporation, Parent and PurchaserParent, Merger Sub, and each of their respective withholding agents and Affiliates, as applicable, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration any consideration payable to any holder of the Shares or any holder of Shares, Company Options, Company RSUs or PSUs or any other consideration otherwise amounts payable pursuant to this Agreement to any other Person pursuant to this Agreement such amounts Taxes as it is are required by any applicable Tax Legal Requirement Requirements to deduct be deducted and withhold withheld. Other than with respect to Taxes. Each such withholding agent arising from compensatory amounts, failure to provide the certificate described in Section 5.2(d) of this Agreement or any withholding arising from any payee’s failure to provide a duly executed IRS Form W-9 or the appropriate version of and duly executed IRS Form W-8 (including all applicable attachments), as applicable, required to be delivered to the Paying Agent pursuant to the Paying Agent Agreement, Parent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted (i) provide notice to the appropriate Governmental Bodyapplicable payee at least three (3) days prior to withholding and (ii) cooperate to avoid such deduction or withholding obligation. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of Person to whom such amounts would otherwise have been paid. Notwithstanding anything to the Sharescontrary herein but subject to Section 1.9(d), holder of Company Optionsany employee compensation payable pursuant to or as contemplated by this Agreement shall be remitted to the applicable payor for payment to the applicable Person through regular payroll procedures, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was madeas applicable.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.7(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.Article I.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Exchange Agent”) for the holders purposes of exchanging Shares to receive represented by a certificate evidencing such Shares (the aggregate Offer Price “Certificates”) and Book-Entry Shares for the Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.3. On or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderClosing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.3(a)(iii) (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Exchange Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To Notwithstanding anything to the extent that (i) there are any losses contrary herein, the Equity Award Consideration will not be deposited with respect to any such investments or (ii) the Exchange Agent and will be paid in accordance with Section 1.6. In the event the Payment Fund has diminished for any reason below shall be insufficient to pay the level aggregate Merger Consideration in accordance with Section 1.3(a)(iii), Parent shall promptly deposit, or cause to be deposited, additional funds with the Exchange Agent in an amount that is equal to the shortfall that is required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As soon as reasonably practicable after the Effective Time (but and in no any event not later than five (5) business days thereafter)the third Business Day following the Effective Time, the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) the Certificates or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.3, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) to the Paying Exchange Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.3. Upon surrender to the Paying Exchange Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b1.4(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.4, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.51.3.
(c) At any time following twelve (12) months after the 12 month anniversary of the Effective Time, Parent shall be entitled to require the Paying Exchange Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.3) which had been made available to the Paying Exchange Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Exchange Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Exchange Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Exchange Agent to deduct and withhold) from the Offer Price, the Merger Consideration any amount payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable Person pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.4(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Sources: Merger Agreement (Alcon Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary At or prior to comply with its and Purchaser’s obligations hereunderthe Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Payment Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Aincluding in connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.the
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.52.5 (subject to Section 2.8(c)). As and when necessary to comply Substantially concurrent with its and Purchaser’s obligations hereunderthe Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, subject to Section 2.8(c)) (the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five ten (510) business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Aother than those entitled to be paid pursuant to Section 2.8(c)) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months the 180th day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs Shares or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such customary and reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Volcano Corp)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent Parent (the “Paying Agent”) for the holders to make payments in respect of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled Shares pursuant to Section 2.51.5 and to pay applicable amounts payable in accordance with Section 1.8(d). As The agreement entered into at Closing pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, deposited with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (togetherthe total cash deposited with the Paying Agent to make payments pursuant to Section 1.5, plus applicable amounts deposited in accordance with Section 1.8(d), the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation▇▇▇▇▇▇; provided that (i) such investments shall be (w) solely in obligations of of, or obligations fully guaranteed by as to principal and interest by, the United States of AmericaU.S. government, (x) in commercial paper obligations rated P-1 or A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionbillion (based on the most recent financial statements of such bank that are then publicly available), or (zii) 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 investment shall have a maturity exceeding three months, (3iii) months. To the extent no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iiv) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.5(a)(iii), at all times during the duration of the Payment Fundplus applicable amounts deposited in accordance with Section 1.8(d), maintained at a level sufficient for the Depository Agent and Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five (5) two business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at as of immediately prior to the Effective Time, a holder of record of (i) Shares that are represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”), notice advising such Person of the occurrence of the Effective Time, which notice shall include (1) or (ii) Book-Entry Sharesappropriate transmittal materials, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(fthereof), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B2) instructions for use in effecting the surrender of the Certificates (or Book-Entry Shares effective affidavits of loss in lieu thereof) to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.51.5(a)(iii). Upon surrender to the Paying Agent Any holder of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such which Shares were converted into the right to receive the Merger Consideration at the Effective Time pursuant to this Agreement, shall not be required to deliver a Certificate or a letter of transmittal in to the case of Certificates, duly completed and validly executed in accordance with Paying Agent to receive the instructions thereto, and Merger Consideration that such other documents as may be required holder is entitled to receive pursuant to the instructionsSection 1.5(a)(iii). In lieu thereof, the each registered holder of one or more such Certificated Shares or Book-Entry Shares shall automatically, upon receipt of an “agent’s message” in customary form (it being understood that the holders of Book-Entry Shares will be deemed to have surrendered such Book-Entry Shares upon receipt of an “agent’s message” or such other evidence, if any, as the Paying Agent may reasonably request), be entitled to receive receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as practicable after the Effective Time (but in exchange therefor no event later than two business days thereafter), the Merger Consideration payable for each Certificated Share or such Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender to holders of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) Upon surrender to the Paying Agent of the Shares that are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed appropriate transmittal materials required by the Paying Agent, the holder of such Certificates shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Share formerly evidenced by such Certificates. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(cd) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Book Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Book Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Book Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(de) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares outstanding prior to the Effective Time shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(ef) Each of the CompanyAcquired Companies, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodywithhold. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts so remitted shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(f)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.ARTICLE I.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5 (including, for the avoidance of doubt, each Share resulting from the HoldCo Unit Exchanges in accordance with the HoldCo LLC Agreement and pursuant to Section 1.5(b)). As The agreement entered into at or prior to Closing pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (togetherthe total cash deposited with the Paying Agent for such purpose, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by P▇▇▇▇▇’▇ Investors Service; provided that (i) such investments shall be solely in obligations of, Inc. or S&P Globalobligations fully guaranteed as to principal and interest by, Inc., respectivelythe U.S. government, (yii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 investment shall have a maturity exceeding three ninety (390) months. To the extent days, (iii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iiv) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isMerger Consideration in accordance with Section 1.5, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are entitled to receive Merger Consideration pursuant to Section 1.5(a)(iii), and (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) ), or (ii) Book-Entry SharesShares (including any Shares received as a result of any HoldCo Unit Exchange occurring after the date of this Agreement) that are not held, whodirectly or indirectly, through DTC, in the case of each case of clauses (i) and (ii), notice advising such Person of the occurrence of the Effective Time, which notice shall include (1) was entitled to receive the Merger Consideration pursuant to Section 2.5appropriate transmittal materials, (A) including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated such Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), as applicable, and (B2) instructions for use in effecting the surrender of the such Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled1.5. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (and such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to Section 1.6(c), the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(d), each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable amount of cash, without interest, into which such Shares represented by such Certificate or Book-Entry Share have been converted pursuant to Section 1.5. The Merger Consideration as contemplated by paid in respect of Shares upon their surrender or transfer for exchange in accordance with this Section 2.51.6(d) shall be deemed to have been paid in full satisfaction of all rights pertaining to such Shares, subject to Section 1.7.
(ce) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration Consideration, without interest, that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding anything to the foregoingcontrary in this Agreement, neither none of Parent, the Surviving Corporation nor and the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, (i) all shares of Company Common Stock will no longer be outstanding and will automatically be cancelled, retired and cease to exist, and (ii) the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the CompanyPaying Agent, the Surviving Corporation, Parent and Purchaserthe Company, Parent, Merger Sub and their Affiliates, respective Affiliates shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodywithhold. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.ARTICLE I.
Appears in 1 contract
Sources: Merger Agreement (PetIQ, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second Business Day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Merger Consideration payable pursuant to Section 1.1(h) ). Promptly after the Closing Date (and in any event no later than the second Business Day after), 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Merger Consideration in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionbillion (based on the most recent financial statements of such bank which are then publicly available), or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Company, Parent, Merger Sub, the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration properly delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and PurchaserMerger Sub, and their respective Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company OptionsOptions pursuant to Section 2.8(a), Company RSUs pursuant to Section 2.8(c)(i), Company PSUs pursuant to Section 2.8(d)(i), or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes; provided that no such deduction or withholding shall be permitted or made pursuant to Section 1445 of the Code. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company OptionsOptions pursuant to Section 2.8(a), Company RSUs pursuant to Section 2.8(c)(i), Company PSUs pursuant to Section 2.8(d)(i), or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Bsquare Corp /Wa)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5. As and when necessary to comply with its and Purchaser’s obligations hereunderAt the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) invested in short-term obligations of of, or guaranteed by by, the United States of America, (x) America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three thirty (330) months. To days from the extent date of such investment in such instrument; provided, however, that (i) there are any losses with respect to any such investments interest or (ii) other income resulting from the investment of the Payment Fund has diminished for any reason below the level required shall be solely for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, account of Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentCorporation.
(b) Promptly As soon as reasonably practicable after the Effective Time (but in no event later than five (5) business days thereafter)Time, Parent and the Surviving Corporation shall cause the Paying Agent to be delivered mail to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.51.5 (excluding, (Afor the avoidance of doubt, the Company, any Subsidiary of the Company, NECA or any other member of Parent, Parent, Merger Sub or any other wholly owned Subsidiary of Parent, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of dissent and appraisal) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to portion of the aggregate Merger Consideration to Payment Fund which holders of Shares shall become entitled pursuant to Section 2.5) which had has not been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to itthe Payment Fund), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither none of the Surviving Corporation nor Corporation, Parent or the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share shares to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs Common Stock or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs Common Stock or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by Parent, the Surviving Corporation, delivery by such person of a written indemnity agreement in form and substance reasonably acceptable to Parent and the posting by that holder such Person of a bond, in such reasonable amount as Parent may reasonably direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e))pay, in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, deposited with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 and Section 1.8 (togetherthe total cash deposited with the Paying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent ; provided, further, that (i) there are any losses with respect to any such investments no gain or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation loss thereon shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of affect the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parenthereunder.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of any Share (ior Shares) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.51.5 (which, (Afor the avoidance of doubt, does not include the Parent-held Company Shares) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Book- Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that any such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.6(b), each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which such Shares represented by such Certificate or Book-Entry Share have been converted pursuant to Section 2.51.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share shares to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration any cash amounts payable to any holder of the Shares or any holder of Company OptionsShares, Company Options or RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall use commercially reasonable efforts to request such information from such payee and use commercially reasonable efforts to assist the applicable payee with reducing or obtaining an exemption from such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Tax Legal Requirements, such withheld amounts so remitted shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Paying Agent”) for the holders of the Shares to receive the aggregate Offer Price funds to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 2.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is are registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months the 180th day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share Shares to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by If any Certificate or Book-Entry Share shall not have been surrendered prior to three years following the Effective Time (or immediately prior to such holders at such time at earlier date on which such amounts any Merger Consideration would otherwise be required to be delivered to a public official pursuant to any abandoned property, escheat to or become property of other similar Legal Requirements), any Governmental Body shall becomesuch Merger Consideration shall, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation or its designeeCorporation, free and clear of all claims or interest interests of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement Equity Awards such amounts as it is may be required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted pursuant to the appropriate Governmental Bodyapplicable Legal Requirements, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Shares or Company Options, Company RSUs or other recipient of consideration hereunder Equity Awards in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable amount as Parent may direct, direct as indemnity against any claim that may be made against it Parent, the Surviving Corporation or the Paying Agent with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay shall deliver in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration without any interest thereon (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Genoptix Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement Offer Acceptance Time, (i) Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Paying Agent”) for the holders of shares of Company Common Stock to receive the Offer, funds to which holders of such shares shall become entitled pursuant to Section 2.1(b) and Section 2.1(f) and (ii) Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.53.5. As The agreement pursuant to which Parent shall appoint the Depository Agent and when necessary the Paying Agent shall, in each case, be in form and substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent Paying Agent, (A) with the Paying Agent, cash sufficient to make the payment of the aggregate cash consideration payable pursuant to Section 2.1(b) and Section 2.1(f) and (B) with the Depository Agent, cash sufficient to make payment of the Offer Price payable pursuant to Section 1.1(h3.5 (such amounts in clauses (A) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (B) of this sentence, together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay purpose. Parent shall be responsible for all expenses of the aggregate Offer Price in Depository Agent and the Offer and Merger Consideration in the MergerPaying Agent. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three months; provided, further, that no such investment or losses thereon shall affect amounts payable to the holders of shares of Company Common Stock pursuant to this Agreement (3) monthsincluding in the Offer or the Merger). To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below (including Dissenting Shares losing their status as such) is less than the level required to pay the aggregate consideration payable pursuant to the Offer or the aggregate Merger Consideration payable pursuant to this Agreement, Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds, in cash, to the Payment Fund for the Depository Agent benefit of such holders of Company Common Stock in the amount of any such losses or Paying Agent other amounts necessary to satisfy the obligations of Parent and the Surviving Corporation to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for this Agreement (including in the benefit of Parent and promptly returned to ParentOffer or the Merger).
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter)Business Days) after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 3.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f3.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or Merger Sub and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b3.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.63.6(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 amount of cash, without interest, into which the shares of Company Common Stock theretofore represented by such Certificate or Book-Entry Shares have been converted pursuant to Section 2.53.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirementsrequirements under applicable Law) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirementsrequirements under applicable Law. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body Entity shall become, to the extent permitted by applicable Legal RequirementsLaw, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaw.
(e) Each of the CompanyPaying Agent, Parent, Merger Sub, the Company and the Surviving Corporation, Parent Corporation and Purchaser, and each of their Affiliates, respective Affiliates shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise cash amounts payable pursuant to this Agreement to any payee thereof such amounts as it is required by any Legal Requirement to deduct and or withhold therefrom under applicable Law; provided, that except (i) with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts amounts treated as compensation for Tax purposes or (ii) as a result of the failure of any holder of shares of Company Common Stock to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS provide an Internal Revenue Service Form W-9 or the appropriate series of IRS Form W-8, as applicable, Parent shall provide the Company written notice of any applicable payor’s intention to make such deduction or any similar informationwithholding at least ten days prior to Closing and shall provide the Company with a reasonable opportunity to obtain reduction of or relief from such deduction or withholding. Each Parent shall reasonably cooperate with the Company to obtain such withholding agent shall take all action that may be necessary to ensure that any reduction or relief from such deduction or withholding. Any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Entity in accordance with applicable Law shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2Article III.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As and when necessary to comply with its and Purchaser’s obligations hereunderAt the Closing, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Depository Paying Agent funds that, when taken together with available cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and Acquired Companies that is deposited with the Paying Agent at the Effective Time, are sufficient to pay the aggregate Merger Consideration payable pursuant to Section 2.5 in respect of the Shares (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser shall, or shall cause the MergerSurviving Corporation to, promptly replace or restore the lost portion of such fund so as to ensure that it is maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving CorporationParent; 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 in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the funds shall be paid to Parent. The Payment Fund has diminished shall not be used for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) other purpose. The Surviving Corporation shall (and Section 2.5, as applicable, Parent or shall cause the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund isto) pay all charges and expenses, at all times during the duration including those of the Payment FundPaying Agent, maintained at a level sufficient for in connection with the Depository Agent exchange of Shares and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess payment of the amounts payable pursuant to Section 2.6 shall be for applicable Merger Consideration in respect of the benefit of Parent and promptly returned to ParentShares.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, Parent and the Surviving Corporation shall cause the Paying Agent to be delivered mail to each Person who was, at immediately prior to the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.6(a)(iii), (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicableA) or Book-Entry SharesCertificates, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, or (B) receipt of an “agent’s message” by the instructionsPaying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificated Shares Certificates or Book-Entry Shares Shares, as applicable, shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, as applicable, and such Certificates and Book-Entry Shares Shares, as applicable, shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is are registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer as deemed by the Surviving Corporation in its reasonable discretion and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve the one hundred eightieth (12180th) months day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration properly delivered in respect of any such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at If any Certificate or Book-Entry Share has not been surrendered or transferred prior to the date on which such amounts any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Body Body, then any such Merger Consideration in respect of such Certificate or Book-Entry Share shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designeeCorporation, free and clear of all any claims or interest of any Person previously entitled thereto.
(d) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares.
(e) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates any Certificate or Book-Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasonsurrender or transfer, they as applicable, it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7.
(ef) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement Agreement, such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or To the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted extent paid over to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Legal Requirements, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have has been lost, stolen or destroyed, then, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which includes an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent to their reasonable satisfaction from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), shall issue in exchange for such lost, stolen or destroyed Certificate, Certificate a check in the applicable Merger Consideration amount (after giving effect to be paid any required Tax withholdings as provided in respect Section 2.7(f)) equal to the number of the Certificated Shares formerly represented by such Certificatelost, as contemplated stolen or destroyed Certificate that have been surrendered multiplied by this Section 2the Merger Consideration.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rightside Group, Ltd.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As and when necessary On or prior to comply with its and Purchaser’s obligations hereunderthe Offer Acceptance Time, Parent shall depositshall, or shall take all steps necessary to enable and cause to be depositedPurchaser to, deposit with the Depository Paying Agent cash sufficient to make the payment all of the aggregate Offer Price payable funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to Section 1.1(h) the Offer and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 be paid in respect of the Shares, as applicable (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the Surviving Corporation; provided payments required by Article 1 or this Article 2 or affect the amount of aggregate Offer Price and Merger Consideration payable in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation funds shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration become part of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) any amounts in excess of the amounts payable pursuant to in connection with the Offer or under Section 2.6 2.6(a) shall be for the benefit of Parent and promptly returned to Parenteither Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares and the payment of the Merger Consideration in respect of the Shares.
(b) Promptly after the Effective Time (but in no any event later than five within three (53) business days thereafterBusiness Days of the Effective Time), Parent and the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.6 (Ai) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (Bii) instructions for use in effecting the surrender of the Certificates or Booknon-certificated Shares represented by Book Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Book Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Book Entry ShareShares, and such Certificates and Book-Book Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Book Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Book Entry Shares shall only be made to the Person in whose name such Book-Book Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve the one hundred eightieth (12180th) months day after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Book Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaw) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Book Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Book Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat Law.
(d) No dividends or other distributions with respect to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property capital stock of the Surviving Corporation with a record date on or its designee, free and clear of all claims or interest after the Effective Time shall be paid to the holder of any Person previously entitled theretounsurrendered Certificates or Book Entry Shares.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal RequirementsLaw. If, after the Effective Time, Certificates any Certificate or Book-Book Entry Shares are Share is presented to the Surviving Corporation Corporation, Parent or the Paying Agent for any reasontransfer, they it shall be cancelled and exchanged as provided for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this AgreementSection 2.7. No Merger Consideration shall be paid to the holder of any unsurrendered Certificate or Book Entry Share until the surrender of such Certificate or Book Entry Share in accordance with this Section 2.7.
(ef) Each of the Company, the The Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement Law to deduct and withhold with respect to Taxes. Each such withholding agent Taxes and shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any remit such amounts so withheld are timely and properly remitted to the appropriate Governmental BodyBody in accordance with applicable Law. To the extent that amounts are so withheld and timely and properly remitted paid to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Shares in respect of which such deduction and withholding was made.
(fg) If In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an effective affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed destroyed, which shall include an agreement to indemnify and defend and hold harmless Parent, the Surviving Corporation and the Paying Agent from and against any and all costs, claims, losses, judgments, damages, counsel fees, expenses and liabilities whatsoever which each may suffer, sustain or incur in connection with the failure of any statement, representation or warranty set forth in such affidavit, any payment for or transfer, exchange or delivery of such Certificate and such Person’s inability to locate such Certificate, and, if required by the Surviving CorporationParent, the posting by that holder such Person of a bond, bond in such reasonable customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)Certificate, the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), issue in exchange for such lost, stolen or destroyed CertificateCertificate a check in the amount (after giving effect to any required Tax withholdings as provided in Section 2.7(f)) equal to the number of Shares represented by such lost, stolen or destroyed Certificate that have been surrendered multiplied by the per Share Merger Consideration.
(h) None of Parent, Purchaser, the applicable Merger Consideration Surviving Corporation or the Paying Agent shall be liable to be paid any Person in respect of any cash from the Certificated Shares formerly represented Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Share has not been surrendered prior to the 24-month anniversary of the Effective Time (or, if earlier, immediately prior to the date on which the Merger Consideration in respect of such Certificate or Book Entry Share would otherwise escheat to or become the property of any Governmental Body), any such Merger Consideration in respect of such Certificate or Book Entry Share shall, to the extent permitted by such Certificateapplicable Law, as contemplated by this Section 2become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Envivio Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a reputable U.S. bank or trust company reasonably acceptable to the Company to act as depositary agent (the “Depository Agent”) for the holders of Shares Company Stockholders entitled to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as the paying agent for the Company Stockholders entitled to receive Merger Consideration pursuant to Section 2.6 (the “Paying Agent”) for ). Parent shall pay, or cause to be paid, all fees and expenses of the holders of Shares Paying Agent. The agreement entered into prior to receive the aggregate cash Merger Consideration Closing pursuant to which holders of such shares Parent shall become entitled pursuant appoint the Paying Agent (the “Paying Agent Agreement”) shall be in form and substance reasonably acceptable to Section 2.5the Company. As and when necessary to comply with its and Purchaser’s obligations hereunderAt or promptly following the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in immediately available funds in U.S. dollars an amount sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h1.1(b) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (togethersuch deposit, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the MergerMerger as provided herein. Earnings from such investments shall be the sole and exclusive property of Parent, and no part of such earnings shall accrue to the benefit of the Company Stockholders, or holders of Company Options or RSUs in each case, as of immediately prior to the Effective Time. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation▇▇▇▇▇▇, in its sole discretion; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent ; provided, further, that (i) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isOffer Price in accordance with Section 1.1(b) and the aggregate Merger Consideration in accordance with Section 2.9(d), at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly after the Effective Time (but in no event later than five two (52) business days Business Days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares (other than Excluded Shares) that are (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through the Depository Trust Company (“DTC”), in the case of each case of clauses (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms of the conditions of the Paying Agent Agreement), as applicable and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as part of such Shares the Merger pursuant to Section 2.52.6. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 2.6.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof thereof), together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may be reasonably request pursuant to the terms and conditions of the Paying Agent Agreement) and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, DTC’s customary surrender procedures and such other documents procedures as may be required agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to the instructionsSection 2.7(c), the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry Share, Shares and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.7, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time deemed, after the Effective Time Time, to represent only the right to receive the applicable Merger Consideration as contemplated by Section 2.52.6.
(ce) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoingNone of Parent, neither Purchaser, the Surviving Corporation nor or the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and PurchaserParent, Purchaser and their Affiliates, respective Affiliates and agents shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent any other applicable withholding agent to deduct and withhold) from any consideration payable pursuant to this Agreement (including the Offer Price, and the Merger Consideration payable Merger) to any holder of the Shares or any holder of Company OptionsShares, Company Options or RSUs or any other consideration otherwise payable pursuant to this Agreement such Taxes or other amounts as it is required by any applicable Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such payor shall remit such amounts so deducted and withheld to the appropriate Governmental Body. If any deduction or withholding agent obligation may be avoided or reduced by a payee providing information or documentation to the applicable payor, such payor shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary provide the payee the opportunity to provide applicable Tax forms, including such as an IRS Form W-9 or the an appropriate series of IRS Form W-8, as applicable, applicable to avoid or any similar information. Each reduce such deduction or withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodyextent permitted by applicable Legal Requirements. To the extent that any amounts are so deducted or withheld and timely and properly are remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)2.7(g), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section Article 2.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Closing Amount to which such holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares Shares, holders of the Company Stock Awards and holders of the Company Warrants to receive the aggregate cash Merger Consideration funds to which such holders of such shares shall become entitled pursuant to Section 2.52.5 and Section 2.8; provided that the Paying Agent shall not act as agent with respect to the Option Consideration or RSU Consideration that will be paid through the Surviving Corporation’s or the applicable Subsidiary’s payroll pursuant to Section 2.8(f) or any amount payable with respect to the CVRs. As The agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly following the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price Closing Amount payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration, Option Consideration described in Section 2.8(a)(i) and RSU Consideration described in Section 2.8(d)(i) payable and amounts payable to holders of the Company Warrants pursuant to Section 2.5 and Section 2.8 (togetherother than the Option Consideration and RSU Consideration payable through payroll in accordance with Section 2.8(f) or any amount payable with respect to the CVRs) (the total cash deposited with the Paying Agent, the “Payment Fund”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than purpose; provided that any interest or income produced by investments with respect to pay the aggregate Offer Price in Payment Fund shall be the Offer and Merger Consideration in the Mergerproperty of Parent. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w1) in obligations of of, or guaranteed by by, the United States of America, (x2) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y3) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z4) 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 foregoing, and, in any such case, no such instrument shall have a maturity exceeding three (3) months. To the extent that investment will (i) there are any losses with respect to any such investments relieve Parent, Purchaser, or the Paying Agent from making the payment required by this Section 2 or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent have maturities that could prevent or Paying Agent delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated other than the holders of Excluded Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.5(a)(iii), (A) in the case of holders of certificated Shares, a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon In the case of certificated Shares, upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(fthereof), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, and, in the instructionscase of Book-Entry Shares, upon receipt by the Paying Agent of a customary “agent’s message” with respect to such Book-Entry Shares (or such other evidence, if any, as the Paying Agent may reasonably request), the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration (solely with respect to the CVRs, subject to the terms and conditions of the CVR Agreement) for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration (including with respect to any CVR) is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares Shares, holders of the Company Stock Awards and holders of Company Warrants (including all interest and other income received by the Paying Agent in respect of all the Payment Fund), and at any time following 12 months after the date of the delivery of the Milestone Notice (as defined in the CVR Agreement), the Surviving Corporation shall be entitled to require the Rights Agent to deliver to it any funds which had been made available to it)the Rights Agent and not disbursed to holders of Shares, holders of the Company Stock Awards and holders of Company Warrants, and, in each case thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration, Option Consideration and RSU Consideration payable and amounts payable to holders of the Company Warrants, as applicable, without any interest thereon, that may be payable upon due surrender of the Certificates or Book-Entry Shares held by themthem or in respect of their Company Options, without any interest thereonRSUs or Company Warrants, as the case may be (other than with respect to the CVRs). Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares Shares, holder of Company Stock Awards or holder of Company Warrants for the Merger Consideration any such consideration delivered in respect of such Share Share, Company Stock Award or Company Warrant to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, at any time after the Effective Time, Certificates or Book-Entry any Shares are presented to the Surviving Corporation for any reason, they shall be cancelled canceled and exchanged as provided in this Section 2 and the CVR Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), and subject to such Person’s compliance with the exchange procedures set forth in Section 2.6(b) (other than the surrender of a Certificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)2.9), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
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Surrender of Certificates; Stock Transfer Books. (a) Prior Not less than 3 Business Days prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as an agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration consideration to which such holders of such shares shall become entitled pursuant to Section 2.52.1(f) and Section 3.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. Immediately prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make payment of the cash consideration payable pursuant to Section 2.1(f) and with the Paying Agent cash sufficient to make payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 and (togetheriv) (such deposits with the Paying Agent, collectively, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in Consideration; provided, however, the Merger. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, further, that such investments shall be (w1) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y2) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding exceeding
20 $1 billion, or (z3) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any no such investments investment will relieve Parent, Purchaser, or the Paying Agent from making the payments required by this ARTICLE 3 and (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent no such investment will have maturities that could prevent or Paying Agent materially delay payments to make prompt cash payment be made pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentthis Agreement.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii) or any holder of Company Warrants, as applicable, (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable or Company Warrants, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Book-Entry Shares pursuant to Section 2.5or Company Warrants, as applicable. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(fthereof), if applicable) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. In the case of any Company Warrants, upon surrender to the Paying Agent of such Company Warrants pursuant to the first sentence of this Section 3.6(b) and such other documents as may be reasonably required pursuant to such instructions, the holder of such Company Warrant shall be entitled to receive in exchange therefor the applicable Warrant Consideration. No interest shall accrue or be paid on the Merger Consideration or Warrant Consideration payable upon the surrender of any Certificates or Certificates, Book-Entry Shares or Company Warrants for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration or Warrant Consideration with respect to Book-Book- Entry Shares or Company Warrants, as applicable, shall only be made to the Person in whose name such Book-Entry Shares or Company Warrants are registered. Until surrendered as contemplated by this Section 2.6hereby, each Certificated Share and Certificate, Book-Entry Share (in each case, other than Dissenting Shares) and Company Warrant 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 2.5.
3.5 or the Warrant Consideration as contemplated by Section 3.8(e). (c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which that had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares or Company Warrants (including including, all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration or Warrant Consideration, as applicable, that may be payable upon due surrender of the Certificates or Book-Entry Shares or Company Warrants held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned propertyShares (or, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to in the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.case of
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the CompanyPaying Agent, Parent, Purchaser, the Surviving Corporation, Parent Corporation and Purchaser, and their Affiliates, any Acquired Company shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxestherefrom under applicable Tax Laws. Each To the extent that such withholding agent shall use commercially reasonable efforts to reduce or eliminate any amounts are so deducted and withheld, each such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that as may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that , and such amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this ARTICLE 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii). (h) Prior to the Effective Time, each of Parent, Purchaser and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to the sum of (i) (A) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (B) the Merger Consideration plus (ii) the aggregate Warrant Consideration payable in respect of all Company Warrants pursuant to Section 3.8(e).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Biodelivery Sciences International Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Cash Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash portion of the Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.52.5 and, in connection therewith, prior to the Closing Date, Parent shall enter into an agreement with the Paying Agent with terms reasonably acceptable to the Company. As and when necessary On or prior to comply with its and Purchaser’s obligations hereunderthe date of the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the prompt payment of the aggregate Offer Price payable pursuant Cash Consideration payable. On or prior to Section 1.1(h) and the Closing Date, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate cash portion of the Merger Consideration payable pursuant to Section 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). For the avoidance of doubt, neither Parent nor Purchaser shall be required to deposit any funds related to any Milestone Payment with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Cash Consideration in the Offer and the aggregate cash portion of the Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be (wx) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements United States government or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) in United States treasury 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments investments, or (ii) the Payment Fund has diminished diminishes for any reason other reasons below the level required for the Depository Agent or Paying Agent to make prompt payment of the Cash Consideration and the aggregate cash payment pursuant to Section 1.1(h) and Section 2.5, portion of the Merger Consideration as applicablecontemplated hereby, Parent or the Surviving Corporation shall promptly replace or restore the cash in portion of the Payment Fund lost through investments or other events so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, is maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicablepayments. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f2.6(e), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f2.6(e), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicablerequired to be paid. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) representing Shares that were converted into the right to receive the Merger Consideration 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 2.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each Notwithstanding any provision contained herein to the contrary, each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, and their Affiliates, the Paying Agent shall be entitled to deduct and withhold from amounts (including any CVR or cause the Paying Agent any Milestone Payment) otherwise payable in connection with this Agreement or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to CVR Agreement any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is are required by any Legal Requirement to deduct and withhold be withheld or deducted with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or payment under the appropriate series of IRS Form W-8, as applicable, Code or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodyapplicable Legal Requirement. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodydeducted or withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made. The payment of any transfer, documentary, sales, use, stamp, registration, value added or other Tax by a holder of Shares in connection with the transactions contemplated by this Agreement, and the filing of any related Tax Return or other documentation with respect to any such Tax, shall be the responsibility of such holder.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a customary bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Decibel Therapeutics, Inc.)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the second business day after) the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each Notwithstanding any provision contained herein to the contrary, each of the Company, the Surviving Corporation, Parent and Purchaser, and their AffiliatesAffiliates (and any other applicable withholding agent, including the Paying Agent and the Depository Agent), shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration Consideration, any consideration payable to any holder of the Shares Company Options or any holder of Company Options, Company RSUs or any other consideration otherwise payable to any Person pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company company, reasonably acceptable to the Company to act as agent (the “Depository Agent”) Company, for the holders of Shares shares of Company Common Stock and Non-Employee Equity Awards to receive the aggregate Offer Price funds to which holders of such Shares shares and such Non-Employee Equity Awards shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock or Non-Employee Equity Awards to receive the aggregate cash Merger Consideration funds to which holders of such shares and such Non-Employee Equity Awards shall become entitled pursuant to Section 2.52.5 (along with applicable amounts payable pursuant to Section 2.8(d)). As The Paying Agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent or Purchaser shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Sections 2.5 and, if applicable, Section 2.5 2.8(d) (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpurpose.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) the shares of Company Common Stock or (ii) BookNon-Entry Shares, who, in each case (i) and (ii) was Employee Equity Awards entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (Aincluding in connection with an exercise or deemed exercise of a Company Warrant) or Section 2.8(d) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that that, in the case of the shares of Company Common Stock, delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares), and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon With respect to shares of Company Common Stock, upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, the Parent or the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Non-Employee Equity Awards, Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Parent or the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may may, in the case of holders of Certificates or Book-Entry Shares, be payable only upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereonthem (or effective affidavits of loss in lieu thereof). Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Non-Employee Equity Awards, Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation Parent or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Paying Agent, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs Common Stock or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving CorporationCorporation or the Paying Agent, the posting by that holder such Person of a bond, in such reasonable amount as Parent or Paying Agent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Sequenom Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration Common Cash Amount to which holders of such shares shall become entitled pursuant to Section 2.51.5. As The agreement entered into at Closing pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or prior to the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price Common Cash Amount (less any amounts to be paid via payroll in accordance with Section 1.8(c)) payable pursuant to Section 1.1(h) and to pay 1.5 (the aggregate Merger Consideration payable pursuant to Section 2.5 (togethertotal cash deposited with the Paying Agent for such purpose, the “Payment FundAmount”). For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement. The Payment Fund Amount shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund Amount shall be invested by the Paying Agent as and to the extent reasonably directed by P▇▇▇▇▇ (the Surviving Corporation“Payment Fund”); provided provided, that (i) such investments shall be (w) solely in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionof, or (z) in money market funds having a rating in obligations fully guaranteed as to principal and interest by, the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing andU.S. government, in any such case, no such instrument shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) no gain or loss on the Payment Fund has diminished for any reason below Amount shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent event the Payment Amount shall be insufficient to make prompt cash payment pursuant to pay the aggregate Common Cash Amount in accordance with Section 1.1(h) and Section 2.5, 1.5 (including in the event Dissenting Shares lose their status as applicablesuch), Parent or the Surviving Corporation shall promptly replace deposit, or restore the cash in the Payment Fund so as cause to ensure that the Payment Fund isbe deposited, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As promptly as practicable after the Effective Time (but in no event later than five (5) two business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at immediately prior to the Effective Time, a holder of record of Shares that are (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) ), or (ii) Book-Entry SharesShares that are not owned, whodirectly or indirectly, through DTC, in the case of each case of clauses (i) and (ii), notice advising such Person of the occurrence of the Effective Time, which notice shall include (1) was entitled to receive the Merger Consideration pursuant to Section 2.5appropriate transmittal materials, (A) including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated such Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), as applicable, and (B2) instructions for use in effecting the surrender of the such Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable (including the right to the Common CVR Amount to be paid, if and payable in respect when payable, by the Rights Agent pursuant to the CVR Agreement) that such holder is entitled to receive as a result of such Shares the Merger pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled1.5. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Common Cash Amount to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 1.5.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof) together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not owned, directly or indirectly, through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms and conditions of the Paying Agent Agreement), and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to Section 1.6(c), the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Common Cash Amount for each Share formerly evidenced by such Certificates or Book-Entry Shares. If With respect to Shares represented by Certificates, if the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is are registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(ce) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration cash amount that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration cash amounts delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day As of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder consideration (including any CVRs in respect of the Shares or any holder of Company Options, Company RSUs or any other consideration Shares) otherwise payable pursuant to this Agreement or the CVR Agreement such amounts as it is required by any applicable Tax Legal Requirement Requirements to deduct and withhold with respect to Taxeswithhold. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. If any deduction or withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such deduction or withholding obligation. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.6(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.ARTICLE I.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a U.S. bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to Section 1.1(h) and to 1.1. The Depository Agent shall also act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary Prior to comply with its and Purchaser’s obligations hereunderor at the Offer Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h) 1.1 at the Offer Closing and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such , subject to the following restrictions. Such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 foregoing. In no event shall any such case, no such instrument shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any Earnings from such investments shall be the sole and exclusive property of Parent, and no such investment gain or (ii) loss shall affect the Payment Fund has diminished amounts payable to holders of Shares. If for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h(including losses) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as shall be insufficient to ensure that the Payment Fund is, at fully satisfy all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments payment obligations pursuant to Section 1.1(h) 1.1 and Section 2.5, as applicable. Any interest and other income resulting upon receipt by Parent of notice of such deficiency from the Paying Agent, Parent or Purchaser shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment obligations.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter)days) after the Effective Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) the Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which . The letter of transmittal shall (i) be in reasonable and customary form and shall form, (ii) specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) applicable Certificates (or effective affidavits of loss in lieu thereof in accordance with of such Certificates pursuant to Section 2.6(f), if applicable) to the Paying AgentAgent and (iii) request from each such Person a copy of an executed IRS Form W-9 or relevant IRS Form W-8, or a customary agent’s message with respect to Book-Entry Sharesas applicable, and a certificate of non-foreign person status (Bconforming to the requirements set forth in Treasury Regulations Section 1.1445-2) if applicable. The letter of transmittal shall also contain instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5Shares. Upon surrender to the Paying Agent of the applicable Certificates (or effective affidavits of loss in lieu thereof in accordance with of such Certificates pursuant to Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions theretoto such letter of transmittal, and such other documents as may be reasonably required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor for such Certificates or Book-Entry Shares the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry Share, and such Shares. Such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereofShares. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and transfer. It shall be a further condition of payment that the Person requesting such payment shall shall: (i) 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 Certificate surrendered, ; or shall (ii) have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6hereby, each Certificated Share and Certificate or Book-Entry Share (in each case, other than Dissenting Shares) shall be deemed at any time deemed, from and after the Effective Time Time, to represent only the right right, subject to Section 2.7, to receive the applicable Merger Consideration in cash as contemplated by Section 2.5this Agreement, without interest thereon.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (Shares, including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, . Upon any such holders shall be entitled to look to the Surviving Corporation delivery (but subject to abandoned property, escheat and other similar Legal Requirements) ), holders shall be entitled to look to the Surviving Corporation only as general creditors thereof of the Surviving Corporation with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by themthem in compliance with the procedures in Section 2.6(b), without interest and subject to any interest thereonwithholding of Taxes required by applicable Legal Requirements in accordance with Section 2.6(e). Notwithstanding the foregoing, neither Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share Shares to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any To the extent permitted by applicable Legal Requirements, any amounts remaining unclaimed by such holders at such immediately prior to the time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, become the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled theretoto such unclaimed amounts.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter following the Effective Time there shall be no further registration of transfers of Shares on the records of the Company. If, after the Effective Time, any Certificates formerly representing Shares are presented to the Surviving Corporation or the Paying Agent for any reason, such Certificates shall be canceled and exchanged for the Merger Consideration as provided in this Section 2.6. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein in this Agreement or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Withholding Agents shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise amounts payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent Withholding Agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lostof such loss, stolen theft or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares)destruction, the Paying Agent will shall pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2. As a condition of such payment and in its sole discretion, the Surviving Corporation may require the attesting holder to post a bond in such reasonable and customary amount as Parent may direct (not to exceed the Merger Consideration payable with respect to the Shares formerly represented by such Certificate) to indemnify against any claim that might be brought with respect to the Certificate upon which payment was made.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company that has a principal place of business located in the United States of America and is reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price funds to which holders of such Shares shares shall become entitled pursuant to to
Section 1.1(h1.1 (b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As Parent shall be responsible for all expenses of the Depository Agent and when necessary the Paying Agent. The Paying Agent Agreement pursuant to comply with its which Parent shall appoint the Paying Agent shall be in form and Purchaser’s obligations hereundersubstance reasonably acceptable to the Company. At or prior to the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h1.1(b) and with the Paying Agent cash sufficient to pay make payment of the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three months; provided, further, that no such investment or losses thereon shall affect amounts payable to the holders of Company Common Stock pursuant to this Agreement (3) monthsincluding in the Offer or the Merger). To the extent that (i) there are any losses with respect to any such investments investments, or (ii) the Payment Fund has diminished for any reason below (including Dissenting Shares losing their status as such) is less than the level required to pay the aggregate consideration payable pursuant to the Offer or the aggregate Merger Consideration pursuant to this Agreement, Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds, in cash, to the Payment Fund for the Depository Agent benefit of such holders of Company Common Stock in the amount of any such losses or Paying Agent other amounts necessary to satisfy the obligations of Parent and the Surviving Corporation to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for this Agreement (including in the benefit of Parent and promptly returned to ParentOffer or the Merger).
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, 2.5 (including in connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) (A) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent), or a customary agent’s message with in respect to of Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.be
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as an agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration consideration to which such holders of such shares shall become entitled pursuant to Section 2.52.1(f) and Section 3.5(a)(iii). As The Paying Agent Agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or promptly after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price consideration payable pursuant to Section 1.1(h2.1(f) and to pay Section 3.5 (such deposit with the aggregate Merger Consideration payable pursuant to Section 2.5 (togetherPaying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall may be invested by the Paying Agent as directed by the Surviving Corporation▇▇▇▇▇▇; provided provided, that such investments shall be (wi) in obligations of of, or guaranteed by by, the United States of America, (xii) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (yiii) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (ziv) 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 foregoing, and, in any such case, no such instrument investment will (x) relieve Parent from making the payments required by Section 2.1(f) and Section 3.5 or (y) have maturities that could prevent or delay payments to be made pursuant to this Agreement and in no event shall have a maturity exceeding three such maturities exceed thirty (330) monthsdays. The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger; provided that any interest or income produced by investments with respect to the Payment Fund shall be the property of Parent. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished fund diminishes for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) of the aggregate Offer Price in the Offer and Section 2.5, as applicablethe aggregate Merger Consideration in the Merger, Parent or the Surviving Corporation shall promptly replace or restore restore, or cause to be replaced or restored, the cash in the Payment Fund lost portion of such fund so as to ensure that the Payment Fund it is, at all times during the duration of the Payment Fundtimes, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) Article 2 and Section 2.5Article 3, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.53.5(a)(iii), (A1) in the case of holders of record of Certificated Shares, a form of letter of transmittal, which shall be transmittal in reasonable and customary form and (which shall specify that delivery shall be effected, and risk of loss and title to the Certificated certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or pursuant to such letter of transmittal and (2) in the case of Book-Entry Shares in exchange for the Merger Consideration issuable Shares, reasonable and payable in customary provisions regarding delivery of an “agent’s message” with respect of to such Shares pursuant to Section 2.5Book-Entry Shares. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal with, in the case of CertificatesCertificated Shares, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to by the instructionsPaying Agent, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled and of no further effect. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required to be paid by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which that had been made available to the Paying Agent and not disbursed to the holders of Certificated Shares Certificates or of Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to itPayment Funds), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal RequirementsLaws) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or of Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal RequirementsLaws. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal RequirementsLaws, the property of the Surviving Corporation or its designee, free and clear of all claims or interest Encumbrances of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this AgreementLaws.
(e) Each of the Paying Agent, Parent, Merger Sub and the Surviving Corporation or any Acquired Company, the Surviving Corporation, Parent and Purchaser, and their Affiliatesas applicable, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs RSUs, Company Warrants, or any other consideration otherwise payable pursuant to or in connection with this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold therefrom under applicable Tax Laws; provided, however, that except for payments to current or former employees of the Company with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce Company Options or eliminate Company RSUs, before making any such deduction or withholding, including by requesting any necessary Tax formsMerger Sub, including IRS Form W-9 Paying Agent, or the appropriate series of IRS Form W-8Surviving Corporation, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted provide to the appropriate Governmental Bodyapplicable payee reasonable advance notice of such deduction or withholding and reasonably cooperate with such payee to obtain reduction of or relief from such deduction or withholding. To the extent that such amounts are so deducted and withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts so remitted shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e3.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Article 3.
(g) Notwithstanding anything to the contrary in this Agreement, no holder of uncertificated Shares held through the Depository Trust Company (“DTC”) will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 23.5(a)(iii).
(h) Prior to the Effective Time, each of Parent, Merger Sub and the Company will cooperate to establish procedures with the Paying Agent and DTC with the objective that the Paying Agent will transmit to DTC or its nominees on the first (1st) Business Day after the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (i) the number of Shares (other than Excluded Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate and enter into a customary exchange agreement with a bank or trust company reasonably acceptable to company, selected by Parent with the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and Company’s prior approval, to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.5. As The Paying Agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and when necessary substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company. At or prior to the Offer Acceptance Time, Parent or Purchaser shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration cash consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than purpose. To the extent the amount of the Payment Fund is below the level required to pay make prompt payment of the aggregate Offer Price Merger Consideration for any reason (including in the Offer event any Dissenting Shares cease to be Dissenting Shares), Parent and Merger Consideration in the MergerSurviving Corporation shall promptly replace or restore the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Any investment of the Payment Fund shall in all events be invested by limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of AmericaU.S. government, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion10 billion (based on the most recent financial statements of such bank that are then publicly available). No such investment or loss thereon shall affect the amounts payable to any former holder of Shares pursuant to this Section 2.
(b) Prior to the Effective Time, or Parent and the Company will cooperate to establish procedures with the Paying Agent and the Depository Trust Company (z“DTC”) in money market funds having a rating in with 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 shall have a maturity exceeding three (3) months. To the extent objective that (i) there are any losses with respect if the Closing occurs at or prior to any 11:30 a.m., Eastern time, on the Closing Date, then the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash, by wire transfer of immediately available funds, equal to (A) the number of shares of Company Common Stock (other than Company Owned Shares and Dissenting Shares) held of record by DTC or such investments or nominee immediately prior to the Effective Time; multiplied by (B) the Merger Consideration (such amount, the “DTC Payment”); and (ii) if the Payment Fund has diminished for any reason below Closing occurs after 11:30 a.m., Eastern time, on the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5Closing Date, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and then the Paying Agent will transmit the DTC Payment to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of DTC or its nominees on the amounts payable pursuant to Section 2.6 shall be for first Business Day after the benefit of Parent and promptly returned to ParentClosing Date.
(bc) Promptly after the Effective Time (but in no event later than five three (53) business days Business Days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A2.5(including in connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) a form of letter of transmittal, transmittal (which shall be in reasonable and customary form reasonably acceptable to the Company and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares pursuant to such letter of transmittal. Each holder of Shares (including in exchange for connection with an exercise or deemed exercise of a Company Warrant pursuant to Section 2.8) that have been converted into the right to receive the Merger Consideration issuable and payable shall promptly upon (i) in respect the case of such Shares pursuant to Section 2.5. Upon represented by a Certificate, surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or reasonably be requested by the instructionsPaying Agent, or (ii) in the holder case of such Certificated Shares or Book-Entry Shares shall Shares, adherence to the procedures set forth in the letter of transmittal and 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), be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share such share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(cd) At any time following twelve six (126) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(de) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(ef) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Purchaser shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodyremitted, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs Common Stock or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(fg) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a bond, in such reasonable amount as Parent may direct, as an indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.6(f)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall shall, at its sole cost and expense, designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which such holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.52.6 (the “Paying Agent”). As The agreement entered into prior to Closing pursuant to which Parent shall cause Payor to, and when necessary Payor shall, deposit with the Paying Agent shall be in form and substance reasonably acceptable to comply with its and Purchaser’s obligations hereunderthe Company (the “Paying Agent Agreement”). At or promptly following the Offer Acceptance Time but prior to the Effective Time, Parent shall cause Payor to, and Payor shall, shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h1.1(b) and to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration payable pursuant to Section 2.5 2.6 and Section 2.9 (other than such Option Consideration and RSU Consideration payable through payroll in accordance with Section 2.9(c)) (such deposits together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration, Option Consideration and RSU Consideration in the MergerMerger as provided herein. The Payment Fund shall be invested by the Paying Agent as and to the extent reasonably directed by the Surviving Corporation▇▇▇▇▇▇; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent ; provided, further, that (i) there are any losses with respect to any such investments no gain or (ii) loss on the Payment Fund has diminished for any reason below shall affect the level required for amounts payable hereunder. In the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in event the Payment Fund so as shall be insufficient to ensure that pay the Payment Fund isOffer Price in accordance with Section 1.1(b) and the Merger Consideration in accordance with Section 2.6, at all times during the duration of the Payment FundParent shall promptly deposit, maintained at a level sufficient for the Depository Agent and or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to promptly the shortfall that is required to make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly after the Effective Time (but in no event later than five two (52) business days thereafter), the Surviving Corporation Parent shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of Shares that are (i) Shares represented by a certificate certificates evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry SharesShares that are not held, whodirectly or indirectly, through DTC, in the case of each case of clauses (i) and (ii) was entitled to receive ), notice advising such Person of the Merger Consideration pursuant to Section 2.5occurrence of the Effective Time, which notice shall include (A) appropriate transmittal materials, including a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify form), specifying that delivery shall be effected, and risk of loss and title to the Certificated Certificates or such Book-Entry Shares shall pass, pass only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicablethereof) or the surrender of such Book-Entry Shares to the Paying Agent, or Agent (which shall be deemed to have been effected upon the delivery of a customary “agent’s message message” with respect to such Book-Entry SharesShares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request pursuant to the terms of the conditions of the Paying Agent Agreement), as applicable and (B) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or such Book-Entry Shares to the Paying Agent in exchange for the Merger Consideration issuable and payable in respect that such holder is entitled to receive as part of such Shares the Merger pursuant to Section 2.52.6. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof.
(c) With respect to Book-Entry Shares held, directly or indirectly, through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable 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 or desirable third-party intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger pursuant to Section 2.6.
(d) Upon surrender to the Paying Agent of the Shares that (i) are represented by Certificates, by physical surrender of such Certificates (or effective affidavits of loss in lieu thereof thereof), together with duly completed and executed appropriate transmittal materials required by the Paying Agent, (ii) are Book-Entry Shares not held through DTC, by book-receipt of an “agent’s message” by the Paying Agent in connection with the surrender of such Book-Entry Shares (or such other reasonable evidence, if any, of such surrender as the Paying Agent may be reasonably request pursuant to the terms and conditions of the Paying Agent Agreement) and (iii) are Book-Entry Shares held, directly or indirectly, through DTC, in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, DTC’s customary surrender procedures and such other documents procedures as may be required agreed by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such other necessary and desirable third-party intermediaries pursuant to the instructionsSection 2.7(c), the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor therefor, and Parent shall cause the Paying Agent to pay and deliver, out of the Payment Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds equal to the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.7, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.52.6.
(ce) At any time following twelve (12) 12 months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it or Payor any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(df) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(eg) Each of the Company, the Surviving Corporation, Parent Parent, Payor and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent Agent, or the Depository Agent any other applicable withholding agent, to deduct and withhold) from the Offer Price, the Merger Consideration any consideration payable to any holder of the Shares or any holder of Company OptionsShares, Company Options or RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any applicable Legal Requirement Requirements to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so deducted or withheld are timely and properly remitted to the appropriate Governmental Body. If any deduction or withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use reasonable best efforts to minimize such deduction or withholding obligation (including by providing the payee the opportunity to provide applicable Tax forms, such as an IRS Form W-9 or an appropriate IRS Form W-8, as applicable). To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of under this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which Person to whom such deduction and withholding was madeamounts would otherwise have been paid.
(fh) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.7(g)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.1(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderPromptly after the Offer Acceptance Time, 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 1.1(h) and ). On or prior to the Closing Date, 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 2.5 2.5(a)(iii) (togethertogether 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 aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration any amount payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable Person pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(hSection 1.01(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.5Section 2.05. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, 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 1.1(h) and Section 1.01(h). On or prior to the Closing Date, 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 2.5 Section 2.05 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as if so directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionone billion dollars, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(hSection 1.01(h) and Section 2.5, as applicableSection 2.05, Parent shall, or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(hSection 1.01(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to ParentSection 2.05.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5Section 2.05, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(fSection 2.06(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5Section 2.05. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(fSection 2.06(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructionsinstructions thereto, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(bSection 2.06(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6Section 2.06(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5Section 2.05.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5Section 2.05) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, the Paying Agent or the Depository Agent, as the case may be, shall be entitled to deduct and withhold (withhold, or cause the Paying Agent or the Depository Agent to deduct be deducted and withhold) withheld, from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to this Agreement Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such Any amounts so deducted and withheld are timely and properly remitted paid over to the appropriate applicable Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(eSection 2.06(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section Article 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h1.01(b) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.52.05. As Promptly after (and when necessary to comply with its and Purchaser’s obligations hereunderin any event no later than the third business day after) the Offer Acceptance Time, 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 1.1(h) and 1.01(h). On or prior to the Closing Date, 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 2.5 2.05 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as if so directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇M▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billionone billion dollars, or (z) 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 shall have a maturity exceeding three (3) months. To the extent Parent becomes aware that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h1.01(h) and Section 2.5, as applicable2.05, Parent shall, or shall cause the Surviving Corporation shall to, promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h1.01(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent2.05.
(b) Promptly after the Effective Time (but in no event later than five (5) three business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.52.05, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f2.06(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.52.05. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f2.06(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructionsinstructions thereto, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation Parent that such transfer or other similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b2.06(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.62.06(b), each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.52.05.
(c) At any time following twelve (12) 12 months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.52.05) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, the Paying Agent or the Depository Agent, as the case may be, shall be entitled to deduct and withhold (withhold, or cause the Paying Agent or the Depository Agent to deduct be deducted and withhold) withheld, from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to this Agreement Agreement, such amounts as it is are required by to be deducted and withheld under any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such Any amounts so deducted and withheld are timely and properly remitted paid over to the appropriate applicable Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts Body in accordance with applicable Legal Requirements shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e2.06(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section Article 2.
Appears in 1 contract
Sources: Merger Agreement (Immunomedics Inc)
Surrender of Certificates; Stock Transfer Books. (a) Prior to At the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunder, 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 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace deliver (or restore cause to be delivered) to each stockholder of NCE who surrenders certificates representing NCE Shares pursuant to this Section 1.13, the cash amount in the Payment Fund so as cash, by check or wire transfer, payable to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments stockholder pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent1.03(c).
(b) Promptly At or after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent Surviving Corporation of Certificates representing NCE Shares (or affidavits of loss and indemnity agreement in lieu thereof in accordance with Section 2.6(fa form reasonably satisfactory to AMRI), if applicable) or Book-Entry Shares, together with such a letter of transmittal in the case a form reasonably satisfactory to AMRI (a "Letter of Certificates, duly completed and validly executed in accordance with the instructions thereto, Transmittal") and such other documents as may be required reasonably requested by AMRI, AMRI shall cause the Surviving Corporation to promptly deliver or cause to be delivered to the persons entitled thereto the cash to which such persons may be entitled as provided in Section 1.03. Until so surrendered and exchanged, each such certificate representing Shares shall, from and after the Effective Time, be deemed to represent only the right to the cash to which such holder is entitled pursuant to Section 1.03, subject to the instructions, the holder terms of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelledthis Agreement. No interest shall accrue or be paid on any assets so held by the Merger Consideration payable upon the Surviving Corporation. Upon surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to each certificate representing Shares, such certificate shall forthwith be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5canceled.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares NCE shall be closed closed, and thereafter there shall be no further registration of transfers of Shares thereafter on the records of the CompanyNCE. From and after the Effective Time, the holders of the certificates evidencing ownership of Shares outstanding immediately prior to the Effective Time Merger shall cease to have any rights as stockholders of NCE or otherwise with respect to such Shares shares, except as otherwise provided herein or by applicable Legal Requirementslaw. If, No dividends or other distribution declared after the Effective Time, Certificates or Book-Entry Shares are presented Time with respect to any shares of capital stock of the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the any unsurrendered certificate or certificates formerly representing Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(fd) If any Certificate shall have been lostNotwithstanding anything to the contrary in this Section 1.13, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by neither the Surviving Corporation, the posting by that Corporation nor any party hereto shall be liable to a holder of a bond, in such reasonable certificate or certificates formerly representing Shares for any amount as Parent may direct, as indemnity against any claim that may be made against it with respect properly paid to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld a public official pursuant to Section 2.6(e))any applicable property, in exchange for such lost, stolen escheat or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2similar law.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Exchange Agent”) for the holders purposes of exchanging Shares to receive represented by a certificate evidencing such Shares (the aggregate Offer Price “Certificates”) and Book-Entry Shares for the Merger Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and 1.3. On or prior to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares shall become entitled pursuant to Section 2.5. As and when necessary to comply with its and Purchaser’s obligations hereunderClosing Date, Parent shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.3(a)(iv) (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Merger; provided that any interest or other income resulting from investment of the Payment Fund that results in an amount being held in the Payment Fund that is greater than the amount payable pursuant to Section 1.3 and this Section 1.4 shall be promptly returned to Parent. The Payment Fund shall be invested by the Paying Exchange Agent as directed by the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To Notwithstanding anything to the extent that (i) there are any losses contrary herein, the Equity Award Consideration will not be deposited with respect to any such investments or (ii) the Exchange Agent and will be paid in accordance with Section 1.6. In the event the Payment Fund has diminished for shall be insufficient to pay the aggregate Merger Consideration in accordance with this Agreement (including Section 1.3(a)(iv) and in respect of any reason below Dissenting Shares that shall be deemed to have been converted as of the level Effective Time into the right to receive the Merger Consideration in accordance with the proviso in the first sentence of Section 1.5), Parent shall promptly deposit, or cause to be deposited, additional funds with the Exchange Agent in an amount that is equal to the shortfall that is required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parentpayment.
(b) Promptly As soon as reasonably practicable after the Effective Time (but and in no any event not later than five the third (53rd) business days thereafter)Business Day following the Effective Time, the Surviving Corporation shall cause to be delivered to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) the Certificates or (ii) Book-Entry Shares, who, in each case (i) and (ii) case, was entitled to receive the Merger Consideration pursuant to Section 2.51.3, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) to the Paying Exchange Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.51.3. Upon surrender to the Paying Exchange Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f1.4(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrenderedsurrendered (“Other Person Transfer Taxes”), or shall have established to the reasonable satisfaction of the Surviving Corporation that such transfer or other Other Person Transfer Taxes either have been paid or are not applicable. None Except as required by Legal Requirements, none of Parent, Purchaser Merger Sub or the Surviving Corporation shall have any liability for the transfer and other similar Other Person Transfer Taxes described in the immediately preceding sentence of this Section 2.6(b1.4(b); provided, that if Legal Requirements impose any such liability on Parent, Merger Sub, or the Surviving Corporation, such Person requesting the payment as described in the immediately preceding sentence of this Section 1.4(b) under shall cause such Other Person Transfer Taxes to be paid on behalf of Parent, Merger Sub, or the Surviving Corporation (such that none of Parent, Merger Sub, or the Surviving Corporation has any circumstanceeconomic responsibility for such Other Person Transfer Taxes). Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.61.4, each Certificated Share Certificate and Book-Entry Share (in each case, other than the Dissenting Shares (subject to Section 1.5) and Excluded Shares) 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 2.51.3.
(c) At any time following the twelve (12) months after 12)-month anniversary of the Effective Time, Parent shall be entitled to require the Paying Exchange Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.51.3) which had been made available to the Paying Exchange Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Exchange Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Exchange Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) (i) Each of the Company, the Surviving Corporation, Parent and PurchaserParent, Merger Sub, the Exchange Agent and their respective Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Exchange Agent to deduct and withhold) from the Offer Price, the Merger Consideration any amount payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable Person pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar informationinformation under U.S. federal, state or local or non-U.S. Legal Requirements. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so deducted or withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and withholding was mademade (except in the case of any deduction or withholding under the Legal Requirements of Switzerland or any political subdivision thereof that is applicable as a result of the status of Parent or any Affiliate of Parent as a tax resident of Switzerland, Parent or any Affiliate of Parent having any other nexus with Switzerland for Tax purposes or any payment hereunder being made from or through Switzerland (and, for the avoidance of doubt, other than a deduction or withholding in respect of amounts payable or deliverable to a holder of Shares or Awards that is tax resident in Switzerland)). (ii) Each of Parent and Merger Sub acknowledges and agrees that no amount with respect to Taxes is required to be deducted or withheld from any amounts payable or deliverable pursuant to Section 1.3, Section 1.5, Section 1.6 or Section 8.3 under the Legal Requirements of Switzerland or any political subdivision thereof as in effect on the date of this Agreement (in each case, respectively, other than from amounts payable or deliverable to a holder of Shares or Awards that is tax resident in Switzerland). (iii) Notwithstanding any other provision of this Agreement, Parent and Merger Sub shall ensure that none of the Company, the Surviving Corporation, Parent, Merger Sub, the Exchange Agent or any of their respective Affiliates or agents shall deduct or withhold, or cause to be deducted or withheld, from any amounts payable or deliverable pursuant to Section 1.3, Section 1.5, Section 1.6 or Section 8.3 any amount with respect to Taxes imposed under the Legal Requirements of Switzerland or any political subdivision thereof (in each case, respectively, other than amounts payable or deliverable to a holder of Shares or Awards that is tax resident in Switzerland) other than as required by any change under the Legal Requirements of Switzerland after the date of this Agreement. Notwithstanding anything in this agreement to the contrary, the sole remedy for a breach of the representation set forth in Section 1.4(e)(ii) shall be the application of Section 1.4(e)(i) and (iii) with respect to any withholding under the Legal Requirements of Switzerland and, as applicable, Section 1.3, Section 1.4(f), Section 1.5, Section 1.6 and Section 8.3.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Exchange Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e1.4(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 21.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.52.5 and, in connection therewith, prior to the Closing Date, Parent shall enter into an agreement with the Paying Agent with terms reasonably acceptable to the Company. As and when necessary Prior to comply with its and Purchaser’s obligations hereunderthe Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the prompt payment of the aggregate Offer Price payable pursuant payable. Prior to Section 1.1(h) and the Closing, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 5 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments investments, or (ii) the Payment Fund has diminished diminishes for any reason other reasons below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, of the Merger Consideration as applicablecontemplated hereby, Parent or the Surviving Corporation shall promptly replace or restore the cash in portion of the Payment Fund lost through investments or other events so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, is maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicablepayments. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five three (53) business days thereafter), the Surviving Corporation shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f2.6(e), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f2.6(e), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicablerequired to be paid. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each Notwithstanding any provision contained herein to the contrary, each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, and their Affiliates, the Paying Agent shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to in connection with this Agreement such any amounts as it is are required by any Legal Requirement to deduct and withhold be withheld or deducted with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or payment under the appropriate series of IRS Form W-8, as applicable, Code or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodyapplicable Legal Requirement. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodydeducted or withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made. The payment of any transfer, documentary, sales, use, stamp, registration, value added or other Tax by a holder of Shares in connection with the transactions contemplated by this Agreement, and the filing of any related Tax Return or other documentation with respect to any such Tax, shall be the responsibility of such holder.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a customary bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
Appears in 1 contract
Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price Consideration to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration to which holders of such shares Shares shall become entitled pursuant to Section 2.52.5 and, in connection therewith, prior to the Closing Date, Parent shall enter into an agreement with the Paying Agent with terms reasonably acceptable to the Company. As and when necessary On or prior to comply with its and Purchaser’s obligations hereunderthe date of the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the prompt payment of the aggregate Offer Price payable pursuant Consideration payable. On or prior to Section 1.1(h) and the Closing Date, 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 2.5 (togethertogether with the amount deposited pursuant the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price Consideration in the Offer and the aggregate Merger Consideration in the Merger. The Payment Fund shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation; provided that such investments shall be (wx) in obligations of or guaranteed by the United States of America, (x) in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements United States government or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) in United States treasury 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments investments, or (ii) the Payment Fund has diminished diminishes for any reason other reasons below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) of the Offer Consideration and Section 2.5, the aggregate Merger Consideration as applicablecontemplated hereby, Parent or the Surviving Corporation shall promptly replace or restore the cash in portion of the Payment Fund lost through investments or other events so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, is maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicablepayments. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to this Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), the Surviving Corporation shall cause the Paying Agent to be delivered mail or otherwise provide to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (the “Certificated SharesCertificates”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares Certificates shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with in respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or effective affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other Taxes either have been paid or are not applicablerequired to be paid. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share Certificate and Book-Entry Share (in each case, other than Dissenting Shares) representing Shares that were converted into the right to receive the Merger Consideration 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 2.5.
(c) At any time following twelve six (126) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each Notwithstanding any provision contained herein to the contrary, each of the Company, the Surviving Corporation, Parent and Parent, Purchaser, and their Affiliates, the Paying Agent shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration amounts otherwise payable pursuant to in connection with this Agreement such any amounts as it is are required by any Legal Requirement to deduct and withhold be withheld or deducted with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or payment under the appropriate series of IRS Form W-8, as applicable, Code or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Bodyapplicable Legal Requirement. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodydeducted or withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder Person in respect of which such deduction and or withholding was made. The payment of any transfer, documentary, sales, use, stamp, registration, value added or other similar Tax by a holder of Shares in connection with the transactions contemplated by this Agreement, and the filing of any related Tax Return or other documentation with respect to any such Tax, shall be the responsibility of such holder.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of a customary bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferEffective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares shares of Company Common Stock to receive the aggregate cash Merger Consideration funds to which holders of such shares shall become entitled pursuant to Section 2.51.5. As and when necessary to comply with its and Purchaser’s obligations hereunderAt the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the payment of the aggregate Offer Price cash consideration payable pursuant to Section 1.1(h) and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 1.5 (together, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and Merger Consideration in the Mergerpurpose. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided provided, that such investments shall be (w) in obligations of or guaranteed by the United States of America, (x) America in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc.Standard & Poor’s Corporation, respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) in excess of the amounts payable pursuant to Section 2.6 shall be for the benefit of Parent and promptly returned to Parent.
(b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter)Time, the Surviving Corporation shall cause to be delivered mailed to each Person who was, at the Effective Time, a holder of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was the shares of Company Common Stock entitled to receive the Merger Consideration pursuant to Section 2.5, (A) 1.5 a form of letter of transmittal, transmittal (which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares certificates evidencing such shares (the “Certificates”) shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) Certificates to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, ) and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5such letter of transmittal. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificatestransmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to the such instructions, the holder of such Certificated Shares Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share share of Company Common Stock formerly evidenced by such Certificates or Book-Entry ShareShares, and such Certificates and Book-Entry Shares shall then be cancelledcanceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares Certificates or Book-Entry Shares (including including, without limitation, all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the any Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares Certificates or Book-Entry Shares for the any Merger Consideration delivered in respect of such Share share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shares of Company Common Stock shall be closed and thereafter there shall be no further registration of transfers of Shares shares of Company Common Stock on the records of the Company. From and after the Effective Time, the holders of the Shares shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, Merger Sub shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder shares of Company Options, Company RSUs Common Stock or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent payor shall take all action that may be necessary to ensure that any such amounts so withheld are timely promptly and properly remitted to the appropriate Governmental Body. If any withholding obligation may be avoided by a payee providing information or documentation to the applicable payor, such payor shall request such information from such payee and use commercially reasonable efforts to avoid such withholding obligation. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Bodywithheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder shares of Company Options, Company RSUs Common Stock or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, Person claiming that such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder such Person of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated SharesCertificate), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e))pay, in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares shares of Company Common Stock formerly represented by such Certificate, as contemplated by this Section 21.
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Surrender of Certificates; Stock Transfer Books. (a) Prior to the commencement of the OfferOffer Acceptance Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for the holders of Shares to receive the aggregate Offer Price to which holders of such Shares shall become entitled pursuant to Section 1.1(h) and to act as agent (the “Paying Agent”) for the holders of Shares to receive the aggregate cash Merger Consideration funds to which holders of such shares Shares shall become entitled pursuant to Section 2.5this Agreement. As Without limiting the generality of Sections 1.1(j) and 9.11, as and when necessary to comply with its needed after each of the Offer Acceptance Time and Purchaser’s obligations hereunderEffective Time, Parent shall depositshall, or shall take all steps necessary to enable and cause to be depositedPurchaser to, deposit with the Depository Paying Agent cash sufficient to make the payment all of the aggregate Offer Price payable funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to Section 1.1(h) the Offer and to pay the aggregate Merger Consideration payable pursuant to Section 2.5 be paid in respect of the Shares, as applicable (together, the “Payment Fund”). The To the extent the Payment Fund shall not be used diminishes for any purpose other than reason below the level required to pay make prompt payment of the aggregate Offer Price amounts described in the Offer preceding sentence, Parent and Merger Consideration in Purchaser shall promptly replace or restore the Mergerlost 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 Paying Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the Surviving Corporation; provided payments required by this Article 2 or affect the amount of Merger Consideration payable in respect of the Shares and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be (w) in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by, and backed by the full faith and credit of, the United States of America, (x) in commercial paper obligations rated A-1 . Any and all interest or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global, Inc., respectively, (y) in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (z) 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 shall have a maturity exceeding three (3) months. To the extent that (i) there are any losses other amounts earned with respect to any such investments or (ii) the Payment Fund has diminished for any reason below the level required for the Depository Agent or Paying Agent to make prompt cash payment pursuant to Section 1.1(h) and Section 2.5, as applicable, Parent or the Surviving Corporation funds shall promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is, at all times during the duration become part of the Payment Fund, maintained at a level sufficient for the Depository Agent and the Paying Agent to promptly make such payments pursuant to Section 1.1(h) and Section 2.5, as applicable. Any interest and other income resulting from such investment (if any) any amounts in excess of the amounts payable pursuant to under Section 2.6 2.6(a) shall be for the benefit of Parent and promptly returned to Parent.
either Parent or the Surviving Corporation. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall (b) Promptly after the Effective Time (but in no event later than five (5) business days thereafter), and Parent shall cause the Surviving Corporation shall cause to be delivered to each Person who wasto) pay all charges and expenses, at the Effective Time, a holder including those of record of (i) Shares represented by a certificate evidencing such Shares (“Certificated Shares”) or (ii) Book-Entry Shares, who, in each case (i) and (ii) was entitled to receive the Merger Consideration pursuant to Section 2.5, (A) a form of letter of transmittal, which shall be in reasonable and customary form and shall specify that delivery shall be effected, and risk of loss and title to the Certificated Shares shall pass, only upon proper delivery of the certificates evidencing such Certificated Shares (the “Certificates”) (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) to the Paying Agent, or a customary agent’s message with respect to Book-Entry Shares, and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration issuable and payable in respect of such Shares pursuant to Section 2.5. Upon surrender to the Paying Agent of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.6(f), if applicable) or Book-Entry Shares, together with such letter of transmittal in the case of Certificates, duly completed and validly executed in accordance connection with the instructions thereto, exchange of Shares and such other documents as may be required pursuant to the instructions, the holder of such Certificated Shares or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration for each Certificated Share or Book-Entry Share, and such Certificates and Book-Entry Shares shall then be cancelled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificates or Book-Entry Shares for the benefit of the holder thereof. If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificates formerly evidencing the Certificated Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and 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 Certificate surrendered, or shall have established to the satisfaction of the Surviving Corporation that such transfer or other 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 2.6(b) under any circumstance. Payment of the applicable Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.6, each Certificated Share and Book-Entry Share (in each case, other than Dissenting Shares) 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 2.5.
(c) At any time following twelve (12) months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (with respect to the aggregate Merger Consideration to which holders of Shares shall become entitled pursuant to Section 2.5) which had been made available to the Paying Agent and not disbursed to holders of Certificated Shares or Book-Entry Shares (including all interest and other income received by the Paying Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar Legal Requirements) only as general creditors thereof with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Book-Entry Shares held by them, without any interest thereon. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of Certificated Shares or Book-Entry Shares for the Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar Legal Requirements. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Body shall become, to the extent permitted by applicable Legal Requirements, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(d) At the close of business on the day of the Effective Time, the stock transfer books of the Company with respect to the Shares shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of the Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Legal Requirements. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(e) Each of the Company, the Surviving Corporation, Parent and Purchaser, and their Affiliates, shall be entitled to deduct and withhold (or cause the Paying Agent or the Depository Agent to deduct and withhold) from the Offer Price, the Merger Consideration payable to any holder of the Shares or any holder of Company Options, Company RSUs or any other consideration otherwise payable pursuant to this Agreement such amounts as it is required by any Legal Requirement to deduct and withhold with respect to Taxes. Each such withholding agent shall use commercially reasonable efforts to reduce or eliminate any such withholding, including by requesting any necessary Tax forms, including IRS Form W-9 or the appropriate series of IRS Form W-8, as applicable, or any similar information. Each such withholding agent shall take all action that may be necessary to ensure that any such amounts so withheld are timely and properly remitted to the appropriate Governmental Body. To the extent that amounts are so withheld and timely and properly remitted to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares, holder of Company Options, Company RSUs or other recipient of consideration hereunder in respect of which such deduction and withholding was made.
(f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder of the Certificated Shares formerly represented by that Certificate, or by a representative of that holder, claiming that Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by that holder of 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 Certificate (which amount shall not exceed the Merger Consideration payable with respect to such Certificated Shares), the Paying Agent will pay (less any amounts entitled to be deducted or withheld pursuant to Section 2.6(e)), in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration to be paid in respect of the Certificated Shares formerly represented by such Certificate, as contemplated by this Section 2Shares.
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Sources: Merger Agreement (Borderfree, Inc.)