Common use of Cash and Stock Elections Clause in Contracts

Cash and Stock Elections. (a) Each Person who, prior to or as of the Election Deadline, is a record holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) shall be entitled to specify the number of such holder’s shares of Company Common Stock with respect to which such holder makes either a Cash Election or a Stock Election. For purposes of this Section 1.8, any reference to “shares of Company Common Stock” shall also include Net RS Shares, as applicable, mutatis mutandis. (b) Parent shall prepare and file as an exhibit to the Form S-4, a form of election, which shall include appropriate instructions (the “Form of Election”) in form and substance reasonably acceptable to the Company. Promptly following the date hereof, the Exchange Agent shall mail the Form of Election to all Persons who are record holders of shares of Company Common Stock as of the record date for the Company Stockholders Meeting. The Form of Election shall be used by each record holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect either a Cash Election or a Stock Election as to each such share of Company Common Stock held by such holder (but, for the avoidance of doubt, such holder may elect a Cash Election with respect to certain shares of Company Common Stock held by such holder and a Stock Election with respect to other shares of Company Common Stock held by such holder). The parties agree to cooperate in good faith and use their respective reasonable best efforts to make the Form of Election available for completion through an online portal. In the event that a holder fails to make a Cash Election or a Stock Election in accordance with Section 1.8(c) with respect to any shares of Company Common Stock held or beneficially owned by such holder by the Election Deadline, then such holder shall be deemed to have made a Stock Election with respect to those shares of Company Common Stock for which no election was made (each such share of Company Common Stock, a “Non-Electing Company Share”). The Exchange Agent shall use its reasonable best efforts to mail or otherwise make available the Form of Election to all Persons who become record holders of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) during the period between the record date for the Company Stockholders Meeting and the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein and as specified in any agreement with the Exchange Agent. (c) Any holder’s election shall have been properly made only if the Exchange Agent shall have received at its designated office (or through another method specified in the Form of Election) by 5:00 p.m., New York City time, on the Closing Date (the “Election Deadline”), a Form of Election properly completed and signed and accompanied by any additional documents required by the procedures set forth in the Form of Election. After a Cash Election or a Stock Election is validly made with respect to any shares of Company Common Stock, no further registration of transfers of such shares of Company Common Stock shall be made on the stock transfer books of the Company, unless and until such Cash Election or Stock Election is properly revoked in accordance with Section 1.8(e) without a new election being made for such shares. (d) Parent and the Company shall publicly announce the anticipated Election Deadline at least five (5) Business Days prior to the anticipated Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline. (e) Any Cash Election or Stock Election may be revoked with respect to all or a portion of the shares of Company Common Stock subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Exchange Agent prior to the Election Deadline. If a Cash Election or a Stock Election is revoked, the shares of Company Common Stock as to which such election previously applied shall be treated as Non-Electing Company Shares in accordance with Section 1.8(b) unless a contrary election is submitted by the holder prior to the Election Deadline. Each person who is a record holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) may at any time prior to, but not after, the Election Deadline change such holder’s election by completing and submitting to the Exchange Agent a new Form of Election through one of the methods specified in the Form of Election prior to the Election Deadline. (f) The reasonable good faith determination of the Exchange Agent (or the reasonable good faith determination of Parent, in the event that the Exchange Agent declines to make any such determination) shall be conclusive and binding as to whether or not Cash Elections and Stock Elections shall have been properly made or revoked pursuant to this Section 1.8, as to when Cash Elections, Stock Elections and revocations were received by the Exchange Agent and to disregard immaterial defects in the completed Forms of Election. None of Parent or the Company or the Exchange Agent shall be under any obligation to notify any Person of any defect in a completed Form of Election. The Exchange Agent (or Parent, in the event that the Exchange Agent declines to make the following computations) shall also make all computations contemplated by Section 1.6(b), and absent manifest error this computation shall be conclusive and binding. The Exchange Agent may, with the written agreement of Parent (subject to the consent of the Company, which shall not be unreasonably withheld, delayed or conditioned), make any rules as are consistent with this Section 1.8 for the implementation of the Cash Elections and Stock Elections provided for in this Agreement as shall be necessary or desirable to administer these Cash Elections and Stock Elections.

Cash and Stock Elections. (a) Each Person who, on or prior to or as of the Election Deadline, is a record holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentationincluding Company Restricted Stock) other than Appraisal Shares shall be entitled to specify the number of such holder’s shares of Company Common Stock with respect to which such holder makes either a Cash Election or a Stock Election. For purposes of this Section 1.82.6, any reference to “shares of Company Common Stock” shall also include Net RS SharesCompany RSUs, as applicable, mutatis mutandis. (b) Parent shall prepare and file as an exhibit to the Form S-4Registration Statement, a form of election, which shall include appropriate instructions election (the “Form of Election”) in form and substance reasonably acceptable to the Company. Promptly following Not less than twenty (20) Business Days prior to the date hereofElection Deadline, the Exchange Agent shall mail the Form of Election to all Persons who are record holders of shares of Company Common Stock as of the record date for the Company Stockholders Meeting. The Form of Election shall be used by each record holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to elect either a Cash Election or a Stock Election as to each such share of Company Common Stock held by such holder (but, for the avoidance of doubt, such holder may elect a Cash Election with respect to certain shares of Company Common Stock held by such holder and a Stock Election with respect to other shares of Company Common Stock held by such holder). The parties agree to cooperate in good faith and use their respective reasonable best efforts to make the Form of Election available for completion through an online portal. In the event that a holder fails to make a Cash Election or a Stock Election in accordance with Section 1.8(c) with respect to any shares of Company Common Stock held or beneficially owned by such holder by the Election Deadline, then such holder shall be deemed to have made a Stock Election with respect to those shares of Company Common Stock for which no election was made (each such share of Company Common Stock, a “Non-Electing Company Share”). The Exchange Agent shall use its reasonable best efforts to mail or otherwise make available the Form of Election available to all Persons who become record holders of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) during the period between the record date for the Company Stockholders Meeting and the Election Deadline, and the Company shall provide to the Exchange Agent all information reasonably necessary for it to perform as specified herein and as specified in any agreement with the Exchange Agent. (c) Any holder’s election shall have been properly made only if the Exchange Agent shall have received at its designated office (or through another method specified in the Form of Election) by 5:00 p.m., New York City time, on the date that is three (3) Business Days preceding the Closing Date (the “Election Deadline”), a Form of Election properly completed and signed and accompanied by any additional documents required by the procedures set forth in the Form of Election. After a Cash Election or a Stock Election is validly made with respect to any shares of Company Common Stock, no further registration of transfers of such shares of Company Common Stock shall be made on the stock transfer books of the Company, unless and until such Cash Election or Stock Election is properly revoked in accordance with Section 1.8(e) without a new election being made for such shares2.6(e). (d) Parent and the Company shall publicly announce the anticipated Election Deadline at least five (5) Business Days prior to the anticipated Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Deadline. (e) Any Cash Election or Stock Election may be revoked with respect to all or a portion of the shares of Company Common Stock subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Exchange Agent prior to the Election Deadline. If a Cash Election or a Stock Election is revoked, the shares of Company Common Stock as to which such election previously applied shall be treated as Non-Electing Company Shares in accordance with Section 1.8(b2.6(b) unless a contrary election is submitted by the holder prior within the period during which elections are permitted to be made pursuant to Section 2.6(c). The accounts of holders of Book-Entry Shares will not be credited at the Election Deadline. Each person who is a record Depository Trust Company, unless the holder of shares of Company Common Stock (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) may at any time prior to, but not after, the Election Deadline change such holder’s election by completing and submitting to the Exchange Agent a new Form of Election through one of the methods specified in the Form of Election prior to the Election Deadlineso requests. (f) The reasonable good faith determination of the Exchange Agent (or the reasonable good faith determination of Parent, in the event that the Exchange Agent declines to make any such determination) shall be conclusive and binding as to whether or not Cash Elections and Stock Elections shall have been properly made or revoked pursuant to this Section 1.82.6, as to when Cash Elections, Stock Elections and revocations were received by the Exchange Agent and to disregard immaterial defects in the completed Forms of Election. None of Parent or the Company or the Exchange Agent shall be under any obligation to notify any Person of any defect in a completed Form of Election. The Exchange Agent (or Parent, in the event that the Exchange Agent declines to make the following computations) shall also make all computations contemplated by Section 1.6(b2.5(b), and absent manifest error this computation shall be conclusive and binding. The Exchange Agent may, with the written agreement of Parent (subject to the consent of the Company, which shall not be unreasonably withheld, delayed or conditioned), make any rules as are consistent with this Section 1.8 2.6 for the implementation of the Cash Elections and Stock Elections provided for in this Agreement as shall be necessary or desirable to administer these Cash Elections and Stock Elections.