Common use of Cash Elections Clause in Contracts

Cash Elections. (a) Each person who, on or prior to the Election Date referred to in Section 2.02(c) below, is a record holder of shares of Company Common Stock will be entitled, with respect to all or any portion of his shares, to make an unconditional election (a "Cash Election") on or prior to such Election Date to receive the Cash Consideration, on the basis hereinafter set forth. (b) Prior to the mailing of the Proxy Statement/Prospectus (as defined in Section 3.01(d)), Bethlehem shall enter into an agreement with a bank or trust company mutually acceptable to the Company and Bethlehem to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Bethlehem shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company (the "Form of Election"), with the Proxy Statement/Prospectus to the record holders of Company Common Stock as of the record date for the Company Shareholders Meeting (as defined in Section 5.01(b)), which Form of Election shall be used by each record holder of shares of Company Common Stock who wishes to elect to receive the Cash Consideration for any or all shares of Company Common Stock held by such holder. Bethlehem and the Company will use reasonable efforts to make the Form of Election and the Proxy Statement/Prospectus available to all persons who become record holders of Company Common Stock during the period between such record date and the Election Date referred to below. Any shareholder's election to receive the Cash Consideration shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time, on the business day (the "Election Date") next preceding the date of the Company Shareholders Meeting, a Form of Election properly completed and signed and accompanied by Certificates for the shares of Company Common Stock to which such Form of Election relates, properly endorsed or otherwise in proper form for transfer (or accompanied by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, provided such Certificates are in fact delivered to the Exchange Agent within three NYSE trading days after the date of execution of such guarantee of delivery). Failure to deliver Certificates covered by any guarantee of delivery within three NYSE trading days after the date of execution of such guarantee of delivery shall be deemed to invalidate any otherwise properly made Cash Election. (d) Any Form of Election may be revoked by the shareholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Bethlehem and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of delivery, as appropriate) for the shares of Company Common Stock to which such Form of Election relates shall be promptly returned to the shareholder submitting the same to the Exchange Agent. (e) The determination of the Exchange Agent whether or not Cash Elections have been properly made or revoked pursuant to this Section 2.02 and when Cash Elections and revocations were received by it shall be binding. If the Exchange Agent determines that any Cash Election was not properly made with respect to shares of Company Common Stock, such shares shall be treated by the Exchange Agent as shares that were not Electing Shares at the Effective Time, and such shares shall be converted in the Merger into the right to receive Stock Consideration pursuant to Section 2.01(c)(ii). The Exchange Agent shall also make all computations as to the proration contemplated by Section 2.03, and any such computation shall be conclusive and binding on the holders of shares of Company Common Stock and on the holders of Company Series B Preferred Stock. The Exchange Agent may, with the mutual agreement of Bethlehem and the Company, make such rules as are consistent with this Section 2.02 for the implementation of the elections provided for herein as shall be necessary or desirable fully to effect such elections.

Cash Elections. (a) Each person who, on or prior to the Election Date referred to in Section 2.02(c) (as defined below), is a record holder of shares of Company Common Stock will shall be entitled, with respect to all or any portion of his such person's shares, other than Dissenting Shares, to make an unconditional election (a "Cash Election") on or prior to such the Election Date to receive the Cash Consideration, on the basis hereinafter set forth. (b) Prior to the mailing of the Proxy Statement/Prospectus (as defined in Section 3.01(d))Effective Time, Bethlehem Parent shall enter into an agreement with designate a bank or trust company mutually acceptable to the Company and Bethlehem to act as exchange agent hereunder (the "Exchange Agent") for the payment purpose of exchanging certificates which immediately prior to the Merger ConsiderationEffective Time represented shares of Company Common Stock (the "Certificates") and shares of Company Common Stock represented by book-entry ("Book-Entry Shares"). (c) Bethlehem Parent shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company election (the "Form of Election"), which shall be subject to the approval of the Company (which approval shall not be unreasonably withheld), and the Company shall mail or cause to be mailed the Form of Election with the Proxy Statement/Prospectus Statement (as defined in Section 3.12) to the record holders of shares of Company Common Stock as of the record date for the Company Shareholders Meeting (as defined in Section 5.01(b)), which 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) who wishes to elect to receive the Cash Consideration cash for any or all shares of Company Common Stock held by such holder, subject to the provisions of Section 2.3. Bethlehem and the The Company will shall use its reasonable best efforts to make the Form of Election and the Proxy Statement/Prospectus available to all persons who become record holders of shares of Company Common Stock during the period between such the record date for the Shareholders Meeting and the Election Date referred to belowDate. Any shareholderholder's election to receive the Cash Consideration cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time, on (1) the date of the Shareholders Meeting or (2) if the Closing Date is more than four business day days following the Shareholders Meeting, two business days preceding the Closing Date (which Closing Date shall be publicly announced by Parent and the Company by press release at least five business days prior to the Closing Date) (the "Election Date") next preceding the date of the Company Shareholders Meeting), a Form of Election properly completed and signed and accompanied by (i) Certificates for representing the shares of Company Common Stock to which such Form of Election relates, properly duly endorsed in blank or otherwise in proper form acceptable for transfer on the books of the Company (or accompanied by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm which is a member an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Securities Exchange Act of a registered national securities exchange or of 1934, as amended (the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, "Exchange Act")); provided that such Certificates are in fact delivered to the Exchange Agent within three NYSE trading days after by the date of execution of time set forth in such guarantee of delivery)) or (ii) in the case of Book-Entry Shares, any additional documents specified in the procedures set forth in the Form of Election. Failure to deliver Certificates covered by any guarantee of delivery within three NYSE trading days after the date of execution of such guarantee of delivery shall be deemed to invalidate any otherwise properly made Cash Election. (d) Any Form of Election may be revoked by the shareholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Bethlehem and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of deliverydelivery or Book-Entry Shares, as appropriate) for the shares of Company Common Stock to which such Form of Election relates shall be promptly returned by the Exchange Agent to the shareholder of the Company submitting the same same. For the avoidance of doubt, any shares of Company Common Stock with respect to which there shall not have been submitted an effective, properly completed Form of Election in accordance with the Exchange Agentterms of this Section 2.2 (other than Dissenting Shares and shares canceled in accordance with Section 2.1(b)), shall be converted into the right to receive the Stock Consideration in accordance with Section 2.1(a)(ii). (ed) The determination of the Exchange Agent (or the mutual determination of the Company and Parent in the event that the Exchange Agent declines to make any such determination) shall be binding as to whether or not Cash Elections have been properly made or revoked pursuant to this Section 2.02 2.2 with respect to shares of Company Common Stock and as to when Cash Elections and revocations were received by it shall be bindingit. If the Exchange Agent reasonably determines in good faith that any Cash Election was not properly made with respect to shares of Company Common Stock, such shares shall be treated by the Exchange Agent as shares that which were not Electing Company Shares at the Effective Time, and such shares shall be converted in the Merger into the right to receive the Stock Consideration pursuant to Section 2.01(c)(ii2.1(a)(ii). The Exchange Agent (or the Company and Parent by mutual agreement in the event that the Exchange Agent declines to make any such determination) shall also make all computations as to the allocation and the proration contemplated by Section 2.032.3, and any such computation shall be conclusive and binding on the holders shareholders of shares of Company Common Stock and on the holders of Company Series B Preferred StockCompany. The Exchange Agent may, with the mutual written agreement of Bethlehem the Company and the CompanyParent, make such rules as are consistent with this Section 2.02 2.2 for the implementation of the elections Cash Elections provided for herein and as shall be necessary or desirable to fully to effect such electionsCash Elections.

Cash Elections. (a) Each person who, on or prior to the Election Date referred to in Section 2.02(c) (as defined below), is a record holder of shares of Company Common Stock will shall be entitled, with respect to all or any portion of his such person’s shares, to make an unconditional election (a "“Cash Election"”) on or prior to such the Election Date to receive the Cash Consideration, on the basis hereinafter set forth. (b) Prior to the mailing of the Proxy Statement/Prospectus (as defined in Section 3.01(d)), Bethlehem shall enter into an agreement with a bank or trust company mutually acceptable to the Company and Bethlehem to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Bethlehem Parent shall prepare and mail a form of electionelection (the “Form of Election”), which form shall be subject to the reasonable approval of the Company (which approval shall not be unreasonably withheld), and the "Company shall mail or cause to be mailed the Form of Election"), Election with the Proxy Statement/Prospectus to the record holders of shares of Company Common Stock as of the record date for the Company Shareholders Meeting (as defined in Section 5.01(b)), which 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) who wishes to elect to receive the Cash Consideration cash for any or all shares of Company Common Stock held by such holder. Bethlehem and the The Company will shall use its reasonable best efforts to make the Form of Election and the Proxy Statement/Prospectus available to all persons who become record holders of shares of Company Common Stock during the period between such the record date for the Company Shareholders Meeting and the Election Date referred to belowDate. Any shareholder's holder’s election to receive the Cash Consideration cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time, on the business day (the "Election Date"1) next preceding the date of the Company Shareholders Meeting or (2) if the Closing Date is more than four Business Days following the Company Shareholders Meeting, two Business Days preceding the Closing Date (the “Election Date”), a Form of Election properly completed and signed and accompanied by Certificates for representing the shares of Company Common Stock to which such Form of Election relates, properly duly endorsed in blank or otherwise in proper form acceptable for transfer on the books of the Company (or accompanied by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of an “eligible guarantor institution” (as defined in Rule 17Ad‑15 under the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, Exchange Act); provided that such Certificates are in fact delivered to the Exchange Agent within three NYSE trading days after by the date of execution of time set forth in such guarantee of delivery), and, in the case of book-entry shares, any additional documents specified in the procedures set forth in the Form of Election. Failure to deliver Certificates covered by any guarantee of delivery within three NYSE trading days after If it is determined that the Election Date will not be the date of execution of such guarantee of delivery the Company Shareholders Meeting, Parent and the Company shall publicly announce the anticipated Election Date at least five Business Days prior to the anticipated Closing Date. If the Closing Date is delayed to a subsequent date, the Election Date shall be deemed similarly delayed to invalidate a subsequent date, and Parent and the Company shall promptly announce any otherwise properly made Cash Election. (d) such delay and, when determined, the rescheduled Election Date. Any Form of Election may be revoked by the shareholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Bethlehem and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Certificate or Certificates (or guarantees of delivery, as appropriate) for the shares of Company Common Stock to which such Form of Election relates shall be promptly returned by the Exchange Agent to the shareholder of the Company submitting the same same. For the avoidance of doubt, any shares of Company Common Stock with respect to which there shall not have been submitted an effective, properly completed Form of Election in accordance with the Exchange Agentterms of this Section 2.8 (other than shares described in Section 2.1(a)(i)), shall be converted into the right to receive the Stock Consideration in accordance with Section 2.1(a)(ii)(B). (ec) The determination of the Exchange Agent (or the mutual determination of the Company and Parent in the event that the Exchange Agent declines to make any such determination) shall be binding as to whether or not Cash Elections have been properly made or revoked pursuant to this Section 2.02 2.8 with respect to shares of Company Common Stock and as to when Cash Elections and revocations were received by it shall be bindingit. If the Exchange Agent reasonably determines in good faith that any Cash Election was not properly made with respect to shares of Company Common Stock, such shares shall be treated by the Exchange Agent as shares that which were not Electing Company Shares at the Effective Time, and such shares shall be converted in the Merger into the right to receive the Stock Consideration pursuant to Section 2.01(c)(ii2.1(a)(ii)(B). The Exchange Agent (or the Company and Parent by mutual agreement in the event that the Exchange Agent declines to make any such determination) shall also make all computations as to the proration contemplated by Section 2.03allocation, and any such computation shall be conclusive and binding on the holders shareholders of shares of Company Common Stock and on the holders of Company Series B Preferred StockCompany. The Exchange Agent may, with the mutual written agreement of Bethlehem the Company and the CompanyParent, make such rules as are consistent with this Section 2.02 2.8 for the implementation of the elections Cash Elections provided for herein and as shall be necessary or desirable to fully to effect such electionsCash Elections.

Cash Elections. (a) Each person who, on or prior to the Election Date referred to (as defined in Section 2.02(c) below1.9(c)), is a record holder of shares of Company Common Stock will shall be entitled, with respect to all or any portion of his such person's shares, other than Company Treasury Shares and Dissenting Shares, to make an unconditional election (a "Cash Election") on or prior to such Election Date to receive the Cash Considerationcash for such holder's shares of Company Common Stock, on the basis hereinafter set forth; provided, however, that, unless the nominee advises the Exchange Agent (as defined in Section 1.9(b)) otherwise in writing, each of the beneficial owners of shares held of record by a bank, trust company, broker, dealer or other recognized nominee (including, for these purposes, shares allocated to participants' accounts under any Company Benefit Plans), shall be treated as a separate record holder and either directly or through such nominee may submit a separate Form of Election (as defined in Section 1.9(c)) for shares that are beneficially owned by such beneficial owner. (b) Prior to the mailing Effective Time, Purchaser shall appoint, subject to the approval of the Proxy Statement/Prospectus Company (as defined in Section 3.01(d)which approval shall not be unreasonably withheld or delayed), Bethlehem shall enter into an agreement with a bank or trust company mutually acceptable to the Company and Bethlehem to act as exchange agent (the "Exchange Agent") for the payment purpose of exchanging certificates which immediately prior to the Effective Time evidenced shares of Company Common Stock (the "Company Certificates") for the Merger Consideration. (c) Bethlehem Purchaser shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company election (the "Form of Election"), with ) which shall be subject to the Proxy Statement/Prospectus approval of Company (which approval shall not be unreasonably withheld or delayed) to be mailed by Company to the record holders of shares of Company Common Stock as not more than 60 Business Days nor less than 20 Business Days prior to the Election Date. The Form of Election may be included on the proxy solicited from stockholders of Company in connection with the approval of Company's stockholders of the record date for Merger and the Company Shareholders Meeting Certificate of Incorporation Amendment (as defined in Section 5.01(b5.1(b)), which . The Form of Election shall be used by each record holder of shares of Company Common Stock who wishes to elect to receive the Cash Consideration cash for any or all shares of Company Common Stock held by such holder, subject to the proration provisions of Section 1.10. Bethlehem and the Company will shall use its reasonable efforts to make the Form of Election and the Proxy Statement/Prospectus available to all persons who become record holders of shares of Company Common Stock during the period between such the record date for the mailing of the Form of Election and the Election Date referred to belowDate. Any shareholderholder's election to receive the Cash Consideration cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time, on the business day Business Day specified by Company in the Form of Election (or a later Business Day specified by Company, reasonably acceptable to Purchaser, in a subsequent press release) (the "Election Date") next preceding ), which Election Date shall be two Business Days prior to the date of on which Purchaser reasonably believes the Company Shareholders MeetingEffective Time will occur, a Form of Election properly completed and signed and accompanied by Company Certificates for representing the shares of Company Common Stock to which such Form of Election relates, properly duly endorsed in blank or otherwise in proper form acceptable for transfer on the books of Company (or accompanied by an appropriate guarantee of delivery of such Company Certificates as set forth in such Form of Election from a firm which is a member an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the Securities Exchange Act of a registered national securities exchange or of 1934, as amended (the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States, "Exchange Act")); provided that such Company Certificates are in fact delivered to the Exchange Agent within three NYSE trading days after by the date of execution of time set forth in such guarantee of delivery). Failure Notwithstanding the foregoing, in order to make its election, the Foundation shall not be required to deliver Certificates covered by any guarantee with its Form of Election the Company Certificate representing the shares of Company Common Stock to which its Form of Election relates if such delivery within three NYSE trading days after would violate the date of execution of Voting Trust and Divestiture Agreement to which it, Company and the trustee named therein are parties; provided that such guarantee of delivery Company Certificate shall be deemed delivered to invalidate the Exchange Agent as soon as practicable thereafter and in any otherwise properly made Cash Election. (d) event prior to receipt of any consideration delivered in exchange therefor. Any Form of Election may be revoked by the shareholder stockholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Bethlehem and the Company that the Merger has been abandoned. If a Form of Election is revoked, the Company Certificate or Company Certificates (or guarantees of delivery, as appropriate) for the shares of Company Common Stock to which such Form of Election relates shall be promptly returned by the Exchange Agent to the shareholder stockholder of Company submitting the same to the Exchange Agentsame. (ed) The determination of the Exchange Agent (or the mutual determination of Company and Purchaser in the event that the Exchange Agent declines to make any such determination) shall be binding as to whether or not Cash Elections have been properly made or revoked pursuant to this Section 2.02 1.9 with respect to shares of Company Common Stock and as to when Cash Elections and revocations were received by it shall be bindingit. If the Exchange Agent reasonably determines in good faith that any Cash Election was not properly made with respect to shares of Company Common Stock, such shares shall be treated by the Exchange Agent as shares that which were not Electing Company Shares at the Effective Time, and such shares shall be converted in the Merger into the right to receive the Stock Consideration pursuant to Section 2.01(c)(ii1.8(b)(ii), subject to proration as provided in Section 1.10. The Exchange Agent (or Company and Purchaser by mutual agreement in the event that the Exchange Agent declines to make any such determination) shall also make all computations as to the allocation and the proration contemplated by Section 2.031.10, and any such computation shall be conclusive and binding on the holders stockholders of shares of Company Common Stock and on the holders of Company Series B Preferred StockCompany. The Exchange Agent may, with the mutual written agreement of Bethlehem Company and the CompanyPurchaser, make such rules as are consistent with this Section 2.02 1.9 for the implementation of the elections Cash Elections provided for herein and as shall be necessary or desirable to fully to effect such electionsCash Elections.