Conversion of Shares. Subject to the provisions of this Article 2, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows: (a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time. (b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4. (c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f). (d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e). (e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 3 contracts
Samples: Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.)
Conversion of Shares. Subject to the provisions of this Article 23, at -------------------- the Effective Time, by virtue of the Merger and without any action on the part of First BankNDC, Malvern Source, Sub or their respective shareholders, the shares stockholders of Malvern shall be converted as followsany of the foregoing:
(a) Each share of capital stock of First Bank NDC issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Sub Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall cease to be outstanding and shall be treated pursuant to Section 2.4converted into one share of Source Common Stock.
(c) Each share of Malvern Source Common Stock (excluding shares held by any Source Entity or any NDC Entity, and excluding shares held by stockholders who perfect their statutory dissenters' rights as provided in Section 3.7) issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall cease to be outstanding and shall be converted into and exchanged for the right to receive, without interest, receive (i) 0.7733 the Common Cash Amount, if any, and that fraction of a share of NDC Common Stock equal to 1,099,716 shares (the “"Payment Shares") divided by the total number of shares of Source Common Stock outstanding at the Closing Date (the "Common Base Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”"); provided, however, that the Payment Shares shall be first reduced by the Option Shares (as defined in Section 3.1(c)(4) below), and (ii) that fraction of a share of NDC Common Stock equal to 455,840 shares (the "Stock Escrow") divided by the total number of shares of Source Common Stock outstanding at the Closing Date, subject to the provisions of Section 3.2, Article 10 and the Escrow Agreement (the "Common Escrow Exchange Ratio");
(1) At the Closing Date, the "Common Cash Amount" shall be calculated by dividing $ 31,750,000, the aggregate cash consideration payable by NDC hereunder (the "Aggregate Cash Amount"), less the Preferred Stock Merger Consideration (as defined in Section 3.1(d)) and the Transaction Expenses (as defined in Section 3.1(c)(2) below), by the total number of shares of Source Common Stock outstanding at the Closing Date.
(2) At the Closing Date, Source shall prepare and deliver to NDC a schedule substantially in the form of Schedule 1 attached hereto (the ---------- "Expense Schedule"), indicating the expenses incurred but unpaid as of the Closing Date which are of the type disclosed on Schedule 1 and which ---------- are directly associated with the transaction contemplated by this Agreement, including, without limitation, all expenses incurred in connection with Source's termination of certain employment agreements and an executive pension plan pursuant to Section 7.1(d) hereof (the "Transaction Expenses") ; provided, however, if the sum of the Preferred Stock Merger Consideration and the Transaction Expenses exceed the Aggregate Cash Amount ("Excess Expense"), then the Payment Shares shall be reduced by that number of shares of NDC Common Stock equal to the quotient of (i) the Excess Expense divided by (ii) the Average Closing Price as of the Closing Date.
(3) If, at the close of trading on the tenth trading day immediately preceding the Closing Date (the "Determination Date"), the Average Closing Price shall be greater than $50.50 (the "Upper Threshold Price"), the "Common Exchange Ratios" (defined to include the Common Base Exchange Ratio and the Common Escrow Exchange Ratio) shall each be adjusted to equal that fraction of a share of NDC Common Stock (rounded to the nearest ten thousandth of a share) obtained by dividing the product of the Common Base Exchange Ratio or the Common Escrow Exchange Ratio, as the case may be, and the Upper Threshold Price by the Average Closing Price at the Determination Date; provided further, that, in the event that the Average Closing Price on the Determination Date shall be less than $37.25 (the "Lower Threshold Price" and, together with the Upper Threshold Price, the "Threshold Prices"), the Common Exchange Ratios may, at the sole discretion of NDC, and in accordance with the provisions of Section 11.1(h), each be adjusted to equal that fraction of a share of NDC Common Stock (rounded to the nearest ten thousandth of a share) obtained by dividing the product of the Common Base Exchange Ratio or the Common Escrow Exchange Ratio, as the case may be, and the Lower Threshold Price by the Average Closing Price at the Determination Date.
(4) At the Closing Date, Source shall have secured the cancellation of all outstanding options and warrants to purchase shares of Source Common Stock and shall provide to NDC a schedule of the number of shares of NDC Common Stock (the "Option Shares") payable to the holders of such options and warrants in consideration of such cancellation.
(5) Pursuant to the NDC Rights Agreement, each share of NDC Common Stock issued in connection with the Merger Consideration may upon conversion of Source Common Stock shall be reduced as provided accompanied by Section 8.2(f)a NDC Right.
(d) All Each share of Source Preferred Stock (excluding shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existheld by any Source Entity or any NDC Entity, and each holder of a certificate (a “Certificate”excluding shares held by stockholders who perfect their statutory dissenters' rights as provided in Section 3.7) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that issued and outstanding immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than be outstanding and shall be converted and exchanged for the right to receive an amount equal to $11.33, subject to adjustment to equal that amount such holder's shares of Source Preferred Stock would otherwise receive if such holder were redeemed on the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive Closing Date pursuant to Section 2.5the Designation (such aggregate amount, cash in lieu of fractional shares of First Bank Common as adjusted, the "Preferred Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(eMerger Consideration").
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 3 contracts
Samples: Merger Agreement (National Data Corp), Merger Agreement (National Data Corp), Merger Agreement (National Data Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share Pursuant to the Sub One Merger:
(i) each Merger Sub One Share held by Merger Sub One as treasury stock or owned by Buyer or any subsidiary of capital stock of First Bank issued Buyer immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto;
(ii) each Insilco Sub One Share outstanding immediately prior to the Effective Time shall remain issued be converted into and become one share of common stock of the Sub One Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding from and after shares of capital stock of the Effective Time.Sub One Surviving Corporation (the "SUB ONE SURVIVING SHARES"); and
(biii) Each share of Malvern Common Stock issued and on the Closing Date, each Sub One Surviving Share outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant exchanged for an amount of cash to be determined on or prior to the Closing Date (subject to adjustment as set forth in Section 2.44.09), without interest (the "SUB ONE MERGER CONSIDERATION").
(cb) Each share Pursuant to the Sub Two Merger:
(i) each Insilco Sub Two Share held by Insilco Sub Two as treasury stock or owned by Buyer or any subsidiary of Malvern Common Stock issued Buyer immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto;
(ii) each Merger Sub Two Share outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Sub Two Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Sub Two Surviving Corporation (excluding the Canceled Shares"SUB TWO SURVIVING SHARES"); and
(iii) each Insilco Sub Two Share outstanding immediately prior to the Effective Time shall be converted into the right to receivereceive an amount of cash to be determined on or prior to the Closing Date (subject to adjustment as set forth in Section 4.09), without interest, (i) 0.7733 shares interest (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f"SUB TWO MERGER CONSIDERATION").
(dc) All shares Pursuant to the Sub Three Merger:
(i) each Merger Sub Three Share held by Merger Sub Three as treasury stock or owned by Buyer or any subsidiary of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Buyer immediately prior to the Effective Time represented shall be canceled, and no payment shall be made with respect thereto;
(ii) each Insilco Sub Three Share outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Sub Three Surviving Corporation with the same rights, powers and privileges and shall constitute the only outstanding shares of Malvern Common Stock capital stock of the Sub Three Surviving Corporation; and
(iii) on the Closing Dates, each Sub Three Surviving Share outstanding immediately prior to the Effective Time shall cease be exchanged for an amount of cash to have any rights with respect be determined on the Closing Date (subject to such Malvern Common Stock other than adjustment as set forth in Section 4.09), without interest, (the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3"SUB THREE MERGER CONSIDERATION" and, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement Sub One Merger Consideration and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)Sub Two Merger Consideration, the "MERGER CONSIDERATION"). The Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, subject to reflect fully the effect of any such changeadjustment as provided in Section 4.09.
Appears in 2 contracts
Samples: Transaction Agreement (Insilco Holding Co), Transaction Agreement (Insilco Corp/De/)
Conversion of Shares. Subject to (a) At the provisions of this Article 2, at the First Merger Effective Time, by virtue :
(i) other than (x) shares of the Merger Company Common Stock to be cancelled pursuant to Section 2.04(a)(ii) and without any action on the part of First Bank, Malvern or their respective shareholders, (y) Dissenting Shares (such shares together with the shares of Malvern shall Company Common Stock to be converted as follows:
(a) Each cancelled pursuant to Section 2.04(a)(ii), collectively, the “Excluded Shares”), each share of capital stock of First Bank issued and Company Common Stock outstanding immediately prior to the First Merger Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, receive (i) 0.7733 shares 0.8375 (the “Exchange Ratio”) shares of First Bank Parent Common Stock (the “Stock Share Consideration”) and (ii) $7.80 125.00 in cash without interest (the “Per Share Cash Consideration,” and together with the Stock Share Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).;
(dii) All each share of Company Common Stock held by the Company as treasury stock or owned by Parent or any of its Subsidiaries immediately prior to the First Merger Effective Time (other than any such shares owned by Parent or any of its Subsidiaries in a fiduciary, representative or other capacity on behalf of other Persons, whether or not held in a separate account) shall be cancelled, and no consideration shall be paid with respect thereto;
(iii) each share of common stock of Merger Sub 1 outstanding immediately prior to the First Merger Effective Time shall be converted into and become one share of common stock, par value $0.01 per share, of the Initial Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of Malvern capital stock of the Initial Surviving Corporation (the “Initial Surviving Corporation Common Stock, when so converted pursuant to Section 2.1(c”); and
(iv) all outstanding shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and (x) each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that which immediately prior to the Effective Time represented any such shares of Malvern Company Common Stock (each, a “Certificate”) and (y) each uncertificated share of Company Common Stock (an “Uncertificated Share”) which immediately prior to the First Merger Effective Time was registered to a holder on the stock transfer books of the Company shall cease to have any rights (other than with respect to such Malvern Common Stock other than Excluded Shares) thereafter represent only the right to receive the Stock Merger Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, right to receive any dividends or other distributions pursuant to Section 2.5, 2.05(f) and any cash in lieu of any fractional shares of First Bank Parent Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject 2.09, in each case to be issued or paid in accordance with Section 3.1(e)2.05, without interest.
(eb) Without limiting At the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Second Merger Effective Time, Malvern should :
(i) spliteach share of Initial Surviving Corporation Common Stock outstanding immediately prior to the Second Merger Effective Time shall be cancelled, combine or otherwise reclassify the shares of Malvern Common Stock, and no consideration shall be paid with respect thereto; and
(ii) make a dividend or other distribution in shares the limited liability company interests of Malvern Common Stock (including any dividend or other distribution Merger Sub 2 outstanding immediately prior to the Second Merger Effective Time shall remain outstanding and shall constitute the only outstanding limited liability company interests of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeSurviving Company.
Appears in 2 contracts
Samples: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersPurchaser, the shares Company or the holder of Malvern shall be converted as followsany of the securities specified below:
(a) Each share of capital stock of First Bank Common Share issued and outstanding immediately before the Effective Time (other than any Dissenting Shares (as hereinafter defined) and Common Shares to be canceled pursuant to SECTION 1.6(c)) shall be canceled and extinguished and be converted into the right to receive the Common Per Share Amount in cash payable to the holder thereof, without interest, upon surrender of the certificate representing such Common Share in accordance with SECTION 1.8 hereof. From and after the Effective Time, the holders of certificates evidencing ownership of Common Shares outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock Shares except as otherwise provided for herein or by applicable Law.
(b) Each Preferred Share issued and outstanding immediately before the Effective Time (other than any Dissenting Shares and Preferred Shares to be canceled pursuant to SECTION 1.6(c)) shall be canceled and extinguished and be converted into the right to receive the Stock Consideration and Preferred Per Share Cash Consideration Amount in cash payable to the holder thereof, without interest, upon surrender of the certificate representing such Preferred Share in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) SECTION 1.8 hereof. From and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and after the Effective Time, Malvern should the holders of certificates evidencing ownership of Preferred Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Preferred Shares except as otherwise provided for herein or by applicable Law.
(ic) splitEach Share held in the treasury of the Company and each Share owned by Parent or any direct or indirect wholly owned subsidiary of Parent immediately before the Effective Time shall be canceled and extinguished, combine and no payment or otherwise reclassify the other consideration shall be made with respect thereto.
(d) The shares of Malvern Common Stock, (ii) make a dividend or other distribution in Purchaser common stock outstanding immediately prior to the Merger shall be converted into 1,000 shares of Malvern the common stock of the Surviving Corporation (the "SURVIVING CORPORATION COMMON STOCK"), which shares of the Surviving Corporation Common Stock (including any dividend or other distribution shall constitute all of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares the issued and outstanding capital stock of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Surviving Corporation and shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect owned by an indirect subsidiary of any such changeParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alarmguard Holdings Inc), Merger Agreement (Tyco International LTD /Ber/)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, each ordinary share, NIS 0.01 par value per share, of the Company (each a "SHARE" and, collectively, the "SHARES") issued and outstanding immediately prior to the Effective Time (other than (i) Shares held in the Company's treasury or by any of the Company's Subsidiaries and (ii) Shares held by Parent, Acquisition or any other subsidiary of Parent) shall, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersAcquisition, the shares Company or the holder thereof, be converted into the right to receive $12.00 in cash without interest (the "MERGER CONSIDERATION").
(b) At the Effective Time, each outstanding ordinary share, NIS 0.01 par value per share, of Malvern Acquisition shall be converted as follows:into one ordinary share, NIS 0.01 par value per share, of the Surviving Company.
(ac) Each share At the Effective Time, each Share held in the treasury of capital stock the Company and each Share held by Parent or any subsidiary of First Bank issued and outstanding Parent, Acquisition or the Company immediately prior to the Effective Time shall remain issued outstanding and outstanding from and after the Effective Timeno Merger Consideration shall be delivered with respect thereto.
(bd) Each share of Malvern Common Stock issued and outstanding immediately prior Share subject to repurchase by the Effective Time Company, or that is held by Malvernotherwise subject to a risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shareseach a "RESTRICTED COMPANY SHARE") shall be converted exchanged pursuant to Section 1.8(a) into the right to receive, without interest, (i) 0.7733 shares (receive the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Merger Consideration, subject to permanent retention (i.e., forfeiture by the “holder thereof) by Parent on the same terms as governed such Restricted Company Share prior to the Merger (such Merger Consideration”, until the restrictions thereon lapse, is referred to as "RESTRICTED CASH"); provided, however, that upon permanent retention of any Restricted Cash, Parent will pay to the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each former holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered the applicable Restricted Company Share an amount equal to the repurchase price of the Restricted Company Shares in the transfer books of Malvern that effect immediately prior to the Effective Time represented shares Time, if any. Parent will distribute to former holders of Malvern Common Stock shall cease to have Restricted Company Shares any rights amount of Restricted Cash with respect to such Malvern Common Stock other than which the right to receive restrictions lapse after the Stock Consideration and Per Share Cash Consideration Effective Time in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with terms that governed the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Restricted Company Share.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cadence Design Systems Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective TimeDate, by virtue of the Merger and without any action on the part of First BankAccess, Malvern Middleburg or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock common stock, par value $0.835 per share, of First Bank Access (“Access Common Stock”) issued and outstanding immediately prior to the Effective Time Date shall remain issued and outstanding from and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern common stock, par value $2.50 per share, of Middleburg (“Middleburg Common Stock Stock”) issued and outstanding immediately prior to the Effective Time Date that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank Access or any First Bank Subsidiary Middleburg (in each case other than shares of Middleburg Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contractedcapacity, that are beneficially owned by third parties) (collectivelyany such shares, the “Canceled Middleburg Cancelled Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no stock of Access or other consideration shall be delivered in exchange therefor.
(c) Each Subject to Section 2.2, each share of Malvern Middleburg Common Stock Stock, except for Middleburg Cancelled Shares, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall Date will cease to be outstanding and will be converted into and exchanged for the right to receive, without interest, (i) 0.7733 receive 1.3314 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable shares of common stock, par value $0.835 per share, of the Continuing Corporation (“Continuing Corporation Common Stock”) (together, with any cash in lieu of fractional shares of Continuing Corporation Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationto be paid pursuant to Section 2.5, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All If, between the date hereof and the Effective Date, the outstanding shares of Malvern Access Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) Stock or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Middleburg Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amountsincreased, if anydecreased, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions changed into or exchanged for a different number or kind of this Agreement and subject to Sections 6.2(d) and (e)shares or securities as a result of a reorganization, if at any time during the period between the date of this Agreement and the Effective Timestock dividend, Malvern should (i) stock split, combine reverse stock split or otherwise reclassify the shares of Malvern Common Stocksimilar change in capitalization, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration appropriate and proportionate adjustments shall be equitably and proportionately adjusted, if necessary and without duplication, made to reflect fully the effect of any such changeExchange Ratio.
Appears in 2 contracts
Samples: Merger Agreement (Access National Corp), Merger Agreement (Middleburg Financial Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankVantage, Malvern Yadkin, Piedmont or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock voting common stock, par value $1.00 per share, of First Bank Yadkin (the “Yadkin Common Stock”) and each share of non-voting common stock, par value $1.00 per share, of Yadkin issued and outstanding immediately prior to before the Effective Time shall remain issued and outstanding from and after shall not be affected by either the Effective TimeVantage Merger or the Piedmont Merger.
(b) Each share All shares of Malvern Common Stock voting common stock, par value $0.001 per share, of Vantage issued and outstanding immediately prior to before the Effective Time (the “Vantage Common Stock”) that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank Yadkin or any First Bank Subsidiary Vantage (in each case other than shares of Vantage Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and the like, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) (collectivelycapacity, the that are beneficially owned by third parties, any such shares, “Canceled Trust Account Common Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no stock of Yadkin or other consideration shall be delivered in exchange therefor.
(c) Each Subject to Sections 1.4(f), each share of Malvern Vantage Common Stock, except for shares of Vantage Common Stock issued and outstanding immediately prior to the Effective Time owned by Piedmont, Vantage or Yadkin or any of their respective wholly owned Subsidiaries (excluding the Canceled other than Trust Account Common Shares) ), shall be converted into the right to receive, without interest, (i) 0.7733 receive 0.3125 shares (the “Vantage Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable voting shares of Yadkin Common Stock (together, with any cash in lieu of fractional shares of Yadkin Common Stock to be paid pursuant to Section 2.1, the “Vantage Common Stock Merger Consideration”).
(d) Subject to Section 1.4(f), each share of common stock, par value $0.01 per share, of Piedmont issued and outstanding immediately before the Effective Time (the “Piedmont Common Stock”), except for shares of Piedmont Common Stock that are owned by shareholders properly exercising their dissenters’ rights pursuant to Section 262 of the DGCL (the “Dissenter Shares”) or shares of Piedmont Common Stock owned by Piedmont, Vantage or Yadkin or any of their respective wholly owned Subsidiaries, shall be converted into the right to receive (i) 6.28597 shares (the “Piedmont Exchange Ratio”) of validly issued, fully paid and nonassessable shares of Yadkin Common Stock (together, with any cash in lieu of fractional shares of Yadkin Common Stock to be paid pursuant to Section 2.1, the “Piedmont Common Stock Merger Consideration”); and (ii) cash per share in an amount equal to $4.0 million/number of outstanding Piedmont Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Piedmont Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, an independent accounting firm shall perform an analysis of Piedmont’s deferred tax assets that (x) is in accordance with the applicable provisions of the Code and GAAP and (y) gives priority usage to Piedmont’s deferred tax assets while not sacrificing utilization of other competing deferred tax assets of the Surviving Corporation over time, which shall be reviewed by Yadkin and its advisors; provided, further, that if such analysis results in the expected utilization of more or less than $4.8 million of Piedmont’s deferred tax assets then the Piedmont Cash Merger Consideration may shall be reduced increased or decreased, as provided applicable, to equal the quotient of the net present value (assuming a 4.0% discount rate) of Piedmont’s deferred tax assets divided by Section 8.2(fthe number of outstanding shares of Piedmont Common Stock; (iii) cash per share equal to the aggregate amount of any cash held by Piedmont and VantageSouth Holdings, LLC, on the Closing Date divided by the number of shares of Piedmont Common Stock outstanding (the “VantageSouth Holdings Cash Merger Consideration”)., and (iv) a right to receive a pro rata share of the “Contingent Shares” (as defined below) (together with any cash in lieu of fractional shares) (the “Piedmont Contingent Shares Merger Consideration”), and together with the VantageSouth Holdings Cash Merger Consideration, the Piedmont Cash Merger Consideration and Piedmont Common Stock Merger Consideration, the “Piedmont Merger Consideration”);
(de) All of the shares of Malvern Vantage Common StockStock and Piedmont Common Stock converted into the right to receive the Vantage Common Stock Merger Consideration and the Piedmont Merger Consideration, when so converted respectively, pursuant to Section 2.1(c) this Article I shall no longer be outstanding and outstanding, shall automatically be canceled and retired cancelled and shall cease to existexist as of the Effective Time, and each holder certificate previously representing any such shares of a certificate Vantage Common Stock or Piedmont Common Stock (each, a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereafter represent only the right to receive the Vantage Common Stock Merger Consideration and Per Share Cash Consideration or the Piedmont Merger Consideration, as applicable, into which the shares of Vantage Common Stock or Piedmont Common Stock represented by such Certificate have been converted pursuant to this Section 1.4, as well as any dividends to which holders of Vantage Common Stock or Piedmont Common Stock become entitled in accordance with Article 3Section 2.2, including as well as the right, if any, to receive pursuant to Piedmont Cash Consideration as provided in Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e1.4(d).
(ef) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement hereof and the Effective Time, Malvern should the outstanding shares of Yadkin Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, stock dividend, stock split, reverse stock split or other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the Vantage Exchange Ratio, the Piedmont Exchange Ratio and the number of Holdback Shares.
(g) Yadkin and Piedmont agree that 856,447 shares of Yadkin Common Stock (the “Holdback Shares”) shall be deposited in an irrevocable “Rabbi Trust” (within the meaning of Revenue Procedure 92-64, the “Trust”) to be established by Yadkin pursuant to the terms and conditions of a trust agreement (the “Trust Agreement”), reasonably acceptable to Yadkin and Piedmont and substantially in the form attached hereto as Exhibit E, to be entered into by Yadkin and the trustee under the Trust on or prior to the Closing Date. The Holdback Shares issued to the trustee of the Trust shall be fully paid and nonassessable voting shares of Yadkin Common Stock and shall have all rights appurtenant thereto, including, without limitation, the right to any dividends or distributions. Yadkin hereby acknowledges and agrees that the Holdback Shares shall, after the Closing Date, be used by it and the Surviving Corporation (i) splitto make all payments due (and at the time payable) under the Piedmont Community Bank Holdings, combine or otherwise reclassify Inc. Phantom Equity Plan (“Phantom Plan”) that was assumed by the shares of Malvern Common StockSurviving Corporation in the Piedmont Merger, and (ii) make a dividend or other distribution in to distribute all remaining shares of Malvern Yadkin Common Stock held by the Trust immediately after satisfying all of its obligations under clause (i) above (such remaining shares the “Contingent Shares”) to the holders of Piedmont Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon holders of Dissenter Shares). The Holdback Shares shall not be used for any purpose except as expressly provided in this Agreement and the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeTrust Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Conversion of Shares. Subject (a) At the Effective Time (after giving effect to Q32 Preferred Stock Conversion), by virtue of the Merger and without any further action on the part of Homology, Merger Sub, Q32 or any stockholder of Q32, subject to Section 2.4(d), the Q32 Common Stock outstanding immediately prior to the provisions Effective Time (excluding Q32 Common Stock issued in the Concurrent Financing) shall be converted solely into the right to receive a number of this Article 2shares of Homology Common Stock equal to the amount of Q32 Merger Shares multiplied by the applicable stockholder’s percentage interest in Q32 as set forth on the Allocation Certificate.
(b) At the Effective Time, at by virtue of the Merger and without further action on the part of Homology, Merger Sub, Q32 or any stockholder of Q32, subject to Section 2.4(d), the Q32 Common Stock issued in the Concurrent Financing shall be converted solely into the right to receive a number of shares of Homology Common Stock equal to the amount of Concurrent Financing Merger Shares multiplied by the percentage of the Concurrent Financing Proceeds represented by the applicable stockholder’s investment in the Concurrent Financing, as set forth on the Allocation Certificate.
(c) If any Q32 Common Stock outstanding immediately prior to the Effective Time is unvested or is subject to a repurchase option or a risk of forfeiture under any applicable restricted stock, restricted stock unit award agreement or other similar agreement with Q32, then the shares of Homology Common Stock issued in exchange for such Q32 Common Stock will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and such shares of Homology Common Stock shall accordingly be marked with appropriate legends. Q32 shall take all actions that may be necessary to ensure that, from and after the Effective Time, Homology is entitled to exercise any such repurchase option or other right set forth in any such restricted stock unit award agreement or other agreement.
(d) No fractional shares of Homology Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such fractional shares shall be issued, with no cash being paid for any fractional share eliminated by such rounding. Any fractional shares of Homology Common Stock a holder of Q32 Common Stock would otherwise be entitled to receive shall be aggregated together first prior to eliminating any remaining fractional share.
(e) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankHomology, Malvern Merger Sub, Q32 or their respective shareholdersany stockholder of Q32, the shares of Malvern shall be converted as follows:
(a) Each each share of capital stock common stock, $0.01 par value per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from exchanged for one validly issued, fully paid and after nonassessable share of common stock, $0.0001 par value per share, of the Surviving Corporation. If applicable, each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation until presented for transfer or exchange.
(bf) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernIf, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should the outstanding Q32 Common Stock or Homology Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split (including the Nasdaq Reverse Split to the extent such split has not previously been taken into account in calculating Q32 Merger Shares), combination or exchange of shares or other like change, Q32 Merger Shares shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Q32 Common Stock and Homology Common Stock with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit Q32 or Homology to take any action with respect to Q32 Common Stock or Homology Common Stock, respectively, that is prohibited or not expressly permitted by the terms of this Agreement.
(g) Each Q32 Option outstanding immediately prior to the Effective Time shall automatically without any further action on the part of Homology, Merger Sub, Q32 or any holder of a Q32 Option, be converted, at the Effective Time, into an option (an “Assumed Option”) to acquire, on the same terms and conditions (including the same vesting and exercisability terms and conditions) as were applicable under the Q32 Equity Plan and option agreement applicable to such Q32 Option immediately prior to the Effective Time, the number of shares of Homology Common Stock determined by multiplying the number of shares of Q32 Common Stock subject to such Q32 Option immediately prior to the Effective Time by the Q32 Exchange Ratio, rounding down to the nearest whole number of shares, at a per share exercise price determined by dividing the per share exercise price of such Q32 Option immediately prior to the Effective Time by the Q32 Exchange Ratio, rounding up to the nearest whole cent; provided, that the conversion of the Q32 Options will be made in a manner consistent with Treasury Regulations Section 1.424-1, such that the conversion will not constitute a “modification” of such Q32 Options for purposes of Section 409A or Section 424 of the Code. As of the Effective Time, Homology will assume the Q32 Equity Plan.
(h) All Q32 Preferred Stock shall be converted into Q32 Common Stock as of immediately prior to the Effective Time in accordance with, and pursuant to the terms and conditions of, the Organizational Documents of Q32 (the “Q32 Preferred Stock Conversion”).
(i) splitAt the Effective Time, combine or otherwise reclassify each Q32 Warrant, to the extent outstanding and unexercised, shall automatically, without any action on the part of the holder thereof, be converted into a warrant to acquire a number of shares of Malvern Homology Common Stock(each such resulting warrant, an “Assumed Warrant”). Each Assumed Warrant shall be subject to the same terms and conditions as were applicable to such corresponding Q32 Warrant immediately prior to the Effective Time (including applicable vesting conditions), except (i) each Assumed Warrant will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Homology Common Stock equal to the product of the number of Q32 Merger Shares that were issuable upon exercise of such Q32 Warrant immediately prior to the Effective Time multiplied by the Q32 Exchange Ratio, rounded down to the nearest whole number of shares of Homology Common Stock, (ii) make a dividend or other distribution in the per share exercise price for the shares of Malvern Homology Common Stock issuable upon exercise of such Assumed Warrant will be equal to the quotient determined by dividing the exercise price per share of Q32 Common Stock at which such Q32 Warrant was exercisable immediately prior to the Effective Time by the Q32 Exchange Ratio, rounded up to the nearest whole cent, and (iii) for terms rendered inoperative by reason of the transactions contemplated by this Agreement (including any dividend anti-dilution or other distribution similar provisions that adjust the number of securities convertible underlying shares that could become exercisable subject to such Q32 Warrant).
(j) Immediately prior to the Effective Time, the Company shall cause the outstanding principal and accrued but unpaid interest on Q32 Convertible Notes to be converted into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional the applicable number of shares of Malvern Q32 Common Stock or provided for under the terms of such Q32 Convertible Note (the “Convertible Notes Conversion”). All of Q32 Convertible Notes converted into shares of Q32 Common Stock shall no longer be outstanding and shall cease to exist, and each holder of Q32 Convertible Notes shall thereafter cease to have any Equity Right for Malvern rights with respect to Q32 Convertible Notes. Immediately following the Convertible Notes Conversion, at the Effective Time and by virtue of the Merger, all shares of Q32 Common Stock, other than upon Stock issued in the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Convertible Notes Conversion shall be equitably canceled and proportionately adjusted, if necessary and without duplication, converted into the right to reflect fully the effect of any such changereceive Homology Common Stock pursuant to this Section 2.4.
Appears in 2 contracts
Samples: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder of Malvern shall be converted as followsthe Company or Parent:
(ai) Each share any shares of capital Company Common Stock held as treasury stock or held or owned by the Company, Merger Sub or any Subsidiary of First Bank issued and outstanding the Company immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5(c) and Section 1.9, each holder share of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Common Stock outstanding immediately prior to the Effective Time represented (excluding shares of Malvern Common Stock to be canceled pursuant to Section 1.5(a)(i), excluding Dissenting Shares and after giving effect to the Pre-Closing Financing and the Convertible Note Conversion) shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Exchange Ratio (the “Merger Consideration”).
(b) If any shares of Company Common Stock Consideration outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will to the same extent be unvested and Per Share Cash Consideration subject to the same repurchase option or risk of forfeiture, and such shares of Parent Common Stock shall accordingly be marked with appropriate legends. The Company shall take all actions that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement in accordance with Article 3its terms.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, including the right, if any, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Common Stock who would otherwise be entitled to receive pursuant a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to Section 2.5such holder) shall, cash in lieu of fractional shares such fraction of First Bank Common Stock into which a share and upon surrender by such shares holder of Malvern Common Stock have been converted together a letter of transmittal in accordance with Section 1.8 and any accompanying documents as required therein, be paid in cash the amountsdollar amount (rounded to the nearest whole cent), if anywithout interest, payable pursuant determined by multiplying such fraction by the Parent Closing Price.
(d) All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 3.1(d) and subject to Section 3.1(e5.4(a).
(e) Without limiting All Parent Options outstanding immediately prior to the other provisions Effective Time under the 2013 Plan shall be treated in accordance with Section 5.4(d).
(f) All Parent Options outstanding immediately prior to the Effective Time under the 2003 Plan shall be treated in accordance with Section 5.4(e).
(g) All Parent Warrants and Replacement Warrants outstanding immediately prior to the Effective Time shall be treated in accordance with Section 5.4(f).
(h) Each share of this Agreement common stock, $0.0001 par value per share, of Merger Sub issued and subject outstanding immediately prior to Sections 6.2(d) the Effective Time shall be converted into and (e)exchanged for one validly issued, fully paid and nonassessable share of common stock, $0.0001 par value per share, of the Surviving Corporation. Each stock certificate of Merger Sub, if at any, evidencing ownership of any time during such shares shall, as of the period Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.
(i) If, between the date time of this Agreement calculating the Exchange Ratio and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the any outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Company Common Stock or Parent Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split (including any dividend or other distribution of securities convertible the Nasdaq Reverse Split to the extent such split has not been previously taken into Malvern Common Stockaccount in calculating the Exchange Ratio), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange of shares or other like change, the Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Common Stock, Company Options, Parent Common Stock, Parent Options, Parent Warrants and Replacement Warrants with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split (including the Nasdaq Reverse Split to the extent such split has not been previously taken into account in calculating the Exchange Ratio), combination or (iv) issue additional exchange of shares of Malvern or other like change; provided, however, that nothing herein will be construed to permit the Company or Parent to take any action with respect to Company Common Stock or any Equity Right for Malvern Parent Common Stock, other than upon respectively, that is prohibited or not expressly permitted by the exercise terms of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changethis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern Merger Subsidiary or their respective shareholders, the holders of any shares of Malvern shall be converted as followsCompany Common Stock or any shares of capital stock of Parent or Merger Subsidiary:
(a) Each except as otherwise provided in Section 1.02(b), Section 1.04 or Section 1.05(d), each share of capital stock of First Bank issued and Company Common Stock (including each Company Restricted Share that vests in accordance with Section 1.05(d) hereof) outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, receive a combination of (i) 0.7733 shares (the “Exchange Ratio”) 0.471 of First Bank a validly issued, fully paid and nonassessable share of Parent Common Stock (such per share amount, the “Stock Consideration”) and (ii) $7.80 26.00 in cash cash, without interest (such per share amount, the “Per Share Cash Consideration,” and and, together with the Stock ConsiderationConsideration and any cash in lieu of fractional shares of Parent Common Stock to be paid pursuant to Section 1.06(b), the “Merger Consideration”); provided. As of the Effective Time, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All all such shares of Malvern Company Common Stock, when so converted pursuant to Section 2.1(c) Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that which immediately prior to the Effective Time represented any such shares of Malvern Company Common Stock shall cease to have any rights with respect to such Malvern (each, a “Certificate”) and each uncertificated share of Company Common Stock other than (an “Uncertificated Share”) which immediately prior to the Effective Time was registered to a holder on the stock transfer books of the Company, shall thereafter represent only the right to receive the Merger Consideration;
(b) each share of Company Common Stock Consideration held by the Company or any of its wholly-owned Subsidiaries or owned by Parent or any of its wholly-owned Subsidiaries immediately prior to the Effective Time shall be canceled, and Per Share Cash Consideration no payment shall be made with respect thereto;
(c) each share of capital stock of Parent outstanding immediately prior to the Effective Time shall remain outstanding and shall not be affected by the Merger; and
(d) in accordance the event of a Subsidiary Merger Election, each share of common stock of Merger Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with Article 3the same rights, including powers and privileges as the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares so converted and shall constitute the only outstanding shares of First Bank Common Stock into which such shares capital stock of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Surviving Corporation.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
Conversion of Shares. Subject to the provisions of this Article ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of First BankWSFS, Malvern Bryn Mawr or their respective shareholdersthe stockholders of any of the foregoing, the shares of Malvern the consolidated corporations shall be converted as follows:
(a) Each share of capital stock of First Bank WSFS issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective TimeTime and shall not be affected by the Merger.
(b) Each share of Malvern Bryn Mawr Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernBryn Mawr, any wholly owned Malvern Bryn Mawr Subsidiary, by First Bank WSFS or any First Bank WSFS Subsidiary (in each case other than shares held in any Malvern Employee Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall automatically be treated pursuant canceled and retired and shall cease to Section 2.4exist, and neither the Merger Consideration nor any other consideration shall be delivered in exchange therefor.
(c) Each share of Malvern Bryn Mawr Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares 0.90 of a share (the “Exchange Ratio”) of First Bank WSFS Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares Each share of Malvern Bryn Mawr Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern Bryn Mawr that immediately prior to the Effective Time represented shares of Malvern Bryn Mawr Common Stock shall cease to have any rights with respect to such Malvern Bryn Mawr Common Stock other than the right to receive the Stock Consideration and Per Share Cash Merger Consideration in accordance with Article ARTICLE 3, including the right, if any, to receive pursuant to Section 2.52.4, cash in lieu of fractional shares of First Bank WSFS Common Stock into which such shares of Malvern Bryn Mawr Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Bryn Mawr Bank Corp), Merger Agreement (WSFS Financial Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern the shareholders of the Company or their respective shareholders, Merger Sub or any of the shares of Malvern shall be converted as followsparties hereto:
(a) Each share of capital Common Stock, par value $.001 per share, of the Company (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 3.1(e)) shall be canceled and shall be converted automatically into the right to receive $2.25 in cash (the "Common Stock Merger Consideration") payable, without interest, to the holder of such share of Company Common Stock, upon surrender, in the manner provided in Section 3.3, of the certificate that formerly evidenced such share of Company Common Stock.
(b) Each share of Preferred Stock, par value $.01 per share, of the Company (the "Company Preferred Stock") designated as Series B Preferred (the "Series B Preferred Stock") issued and outstanding immediately prior to the Effective Time (other than any shares of Series B Preferred Stock to be canceled pursuant to Section 3.1(e) and any Dissenting Shares (as hereinafter defined)) shall be canceled and shall be converted automatically into the right to receive an amount in cash equal to the sum of (x) the liquidation preference associated with such share of Series B Preferred Stock (i.e., $50) plus (y) the accrued and unpaid dividends on such share of Series B Preferred Stock (the "Series B Preferred Stock Merger Consideration"), payable, without interest, to the holder of such share of Series B Preferred Stock, upon surrender, in the manner provided in Section 3.3, of the certificate that formerly evidenced such share of Series B Preferred Stock.
(c) Each share of Company Preferred Stock designated as Series C Preferred (the "Series C Preferred Stock") issued and outstanding immediately prior to the Effective Time (other than any shares of Series C Preferred Stock to be canceled pursuant to Section 3.1(e) and any Dissenting Shares) shall be canceled and shall be converted automatically into the right to receive an amount in cash equal to the product of (x) the Common Stock Merger Consideration multiplied by (y) the number of shares of Company Common Stock into which such share of Series C Preferred Stock is convertible immediately prior to the Effective Time (the "Series C Preferred Stock Merger Consideration"), payable, without interest, to the holder of such share of Series C Preferred Stock, upon surrender, in the manner provided in Section 3.3, of the certificate that formerly evidenced such share of Series C Preferred Stock.
(d) Each share of Company Preferred Stock designated as Series D Preferred (the "Series D Preferred Stock") issued and outstanding immediately prior to the Effective Time (other than any shares of Series D Preferred Stock to be canceled pursuant to Section 3.1(e) and any Dissenting Shares) shall be canceled and shall be converted automatically into the right to receive an amount in cash equal to the sum of (x) the liquidation preference associated with such share of Series D Preferred Stock (i.e., $50) plus (y) the accrued and unpaid dividends on such share of Series D Preferred Stock (the "Series D Preferred Stock Merger Consideration"), payable, without interest, to the holder of such share of Series D Preferred Stock, upon surrender, in the manner provided in Section 3.3, of the certificate that formerly evidenced such share of Series D Preferred Stock.
(e) Each share of Company Common Stock and Company Preferred Stock held in the treasury of the Company immediately prior to the Effective Time and each share of Company Common Stock and Company Preferred Stock owned by Parent or any of its Subsidiaries immediately prior to the Effective Time shall be canceled without any conversion thereof, and no payment or distribution shall be made with respect thereto.
(f) Each share of common stock of First Bank Merger Sub that is issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and become one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation with the same rights, powers and privileges as the share so converted, and all such shares of Surviving Corporation common stock shall constitute the only outstanding from and shares of the Surviving Corporation immediately after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, Time by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the any holder of shares of Malvern shall be converted as followsCompany Stock or Company Class B Stock or any holder of shares of common stock of Merger Subsidiary:
(a) Each share of capital common stock of First Bank issued and Merger Subsidiary outstanding immediately prior to the Effective Time shall remain issued outstanding and shall constitute the only outstanding from and after shares of capital stock of the Effective TimeSurviving Entity.
(b) Each share of Malvern Common Company Stock issued and outstanding held by the Company as treasury stock immediately prior to the Effective Time that is shall be canceled, and no payment shall be made with respect thereto. Each share of Company Stock held by Malvern, any wholly owned Malvern Subsidiary, by First Bank Parent or any First Bank Merger Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, immediately prior to the “Canceled Shares”) Effective Time shall be treated pursuant to Section 2.4canceled, and no payment shall be made with respect thereto.
(c) Each share of Malvern Common Company Stock issued and outstanding immediately prior to the Effective Time shall, except as otherwise provided in Section 2.02(b), Section 2.02(d), Section 2.08 or Section 2.11, be converted into the following (excluding collectively, the Canceled Shares“Merger Consideration”):
(i) for each such share of Company Stock with respect to which an election to receive cash has been effectively made and not revoked and that is not deemed converted into the right to receive the Per Share Stock Consideration pursuant to Section 2.04 (each, a “Cash Electing Share”), the right to receive an amount equal to $36.50 in cash without interest (the “Cash Election Price”); and
(ii) for each other such share of Company Stock, the right to receive 0.6432 shares (the “Per Share Stock Consideration”) of Parent Stock.
(d) Each share of Company Class B Stock outstanding immediately prior to the Effective Time owned by Parent or Merger Subsidiary shall be canceled, and no payment shall be made with respect thereto, and each other share of Company Class B Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive, without interest, (i) 0.7733 shares (receive the “Exchange Ratio”) of First Bank Common Stock (the “Per Share Stock Consideration”) and (ii) $7.80 in cash (. As of the “Per Share Cash Consideration,” and together with the Stock ConsiderationEffective Time, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All all such shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) Company Class B Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right to receive the Per Share Stock Consideration and the right to receive any dividends or other distributions pursuant to Section 2.05(i) and any cash in lieu of any fractional share of Parent Stock pursuant to Section 2.08, in each holder case to be issued or paid in accordance with Section 2.05, without interest. Each share of a certificate Company Stock owned by any Subsidiary of Parent (a “Certificate”other than Merger Subsidiary) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that outstanding immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than be converted into the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Consideration.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Pepsi Bottling Group Inc), Merger Agreement (Pepsico Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern any Party or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each Common Share issued and outstanding immediately prior to the Effective Time (other than Common Shares that are Dissenting Shares or Rollover Shares) shall automatically be cancelled, extinguished and converted into and represent the right to receive an amount in cash equal to the sum of (i) the Per Share Merger Consideration (without any interest thereon), plus (ii) subject to Section 1.15 and Article 8, the Per Share Escrow Consideration, if any, to be paid to the Company Securityholders if and when released in accordance with the Escrow Agreement and this Agreement, plus (iii) subject to Section 1.10(d), the Per Share Holdback Consideration, if any, to be paid to the Company Securityholders if and when released in accordance with this Agreement.
(b) Each Series A Preferred Share issued and outstanding immediately prior to the Effective Time (other than Series A Preferred Shares that are Dissenting Shares or Rollover Shares) shall automatically be cancelled, extinguished and converted into and represent the right to receive an amount in cash equal to the sum of (i) the Per Share Merger Consideration (without any interest thereon), plus (ii) subject to Section 1.15 and Article 8, the Per Share Escrow Consideration, if any, to be paid to the Company Securityholders if and when released in accordance with the Escrow Agreement and this Agreement, plus (iii) subject to Section 1.10(d), the Per Share Holdback Consideration, if any, to be paid to the Company Securityholders if and when released in accordance with this Agreement.
(c) Each Rollover Share (which, as of the Effective Time, will be held by Buyer) shall be converted into and thereafter evidence that number of validly issued, fully paid and non-assessable shares of common stock, $0.01 par value per share, of the Surviving Corporation that bears the same ratio to the aggregate number of outstanding shares of common stock of the Surviving Corporation that such Rollover Share bore to the aggregate number of outstanding Common Shares and Series A Preferred Shares immediately prior to the Effective Time.
(d) Each share of capital stock common stock, $0.01 par value per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into and thereafter evidence one validly issued, fully paid and non-assessable share of common stock, $0.01 par value per share, of the right to receiveSurviving Corporation, without interest, (i) 0.7733 and such shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and taken together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so common stock of the Surviving Corporation into which the Rollover Shares are converted pursuant to Section 2.1(c1.7(c)) shall no longer be constitute the only outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than capital stock of the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Surviving Corporation.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any further action on the part of First BankChemical, Malvern Talmer, or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock Common Stock, $1.00 par value per share, of First Bank Chemical (the “Chemical Common Stock”) issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern Class A Common Stock Stock, $1.00 par value per share, of Talmer (the “Talmer Common Stock”) issued and outstanding immediately prior to the Effective Time that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank Talmer or any First Bank Subsidiary Chemical (in each case other than Trust Account Shares and other than shares of Talmer Common Stock held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectivelyshall no longer be outstanding, the “Canceled Shares”) shall automatically be cancelled, and shall cease to exist, and no Chemical Common Stock or other consideration shall be treated pursuant to Section 2.4delivered in exchange therefor.
(c) Each Subject to Section 1.4(e), each share of Malvern Talmer Common Stock, except for shares of Talmer Common Stock issued owned by Chemical, Talmer, or any of their respective wholly-owned Subsidiaries (other than Trust Account Shares and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shares of Talmer Common Stock held as a result of debts previously contracted), shall be converted into the right to receive, without interest, receive (i) 0.7733 0.4725 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid, and nonassessable shares of Chemical Common Stock (the “Stock Consideration”) ); and (ii) $7.80 1.61 in cash cash, without interest (the “Per Share Cash Consideration,” and and, together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All of the shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Talmer Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than converted into the right to receive the Merger Consideration pursuant to this Article I shall no longer be outstanding, shall automatically be cancelled, and shall cease to exist as of the Effective Time, and each book entry notation of record ownership and each certificate previously representing any such shares of Talmer Common Stock shall thereafter represent only the right to receive the Merger Consideration and Per Share Cash Consideration into which the shares of Talmer Common Stock represented by such book entry notation of record ownership or such certificate have been converted pursuant to this Section 1.4, as well as any dividends to which holders of Talmer Common Stock become entitled in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)2.2.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should there is declared (iwith an effective time prior to the Effective Time) or effected a reorganization, reclassification, recapitalization, stock split (including a reverse stock split), combine or otherwise reclassify the shares of Malvern Common Stocksplit-up, (ii) make a stock dividend or other stock distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Chemical Common Stock or Talmer Common Stock), (iii) engage in a reclassificationcombination, reorganization, recapitalization or exchange or other like changeexchange, or (iv) issue readjustment of shares with respect to, or rights issued in respect of, Chemical Common Stock or Talmer Common Stock, the Exchange Ratio shall be proportionately adjusted accordingly to provide to the holders of Talmer Common Stock the same economic effect as contemplated by this Agreement prior to such event. Notwithstanding any other provisions of this Section 1.4(e), no adjustment shall be made in the event of the issuance of additional shares of Malvern Chemical Common Stock or Talmer Common Stock pursuant to any Equity Right for Malvern Common Stockdividend reinvestment plan or direct investment plan of Chemical or Talmer, other than upon as applicable, pursuant to the exercise of stock options awarded under any Malvern Stock Options outstanding on director, employee or affiliate stock option plans of Chemical or Talmer, as applicable, or their Subsidiaries, or upon the date hereof, then (without limiting any other grant or sale of shares or rights of First Bank hereunder), to receive shares to or for the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect account of any such changedirector, employee, or Affiliate of Chemical or Talmer, as applicable, or any of their Subsidiaries pursuant to any stock option or other compensation or benefit plans of Chemical or Talmer, as applicable, or in connection with the issuance of shares as consideration in a transaction where Chemical or Talmer, as applicable, is the surviving corporation or in connection with any offering of shares where Chemical or Talmer, as applicable, receives consideration in exchange for the shares so offered.
Appears in 2 contracts
Samples: Merger Agreement (Talmer Bancorp, Inc.), Merger Agreement (Chemical Financial Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersMerger Sub, the shares Company or the holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock of First Bank Share issued and outstanding immediately before the Effective Time (other than any Shares to be cancelled pursuant to Section 1.3(b) hereof and any Dissenting Shares (as hereinafter defined)) shall be cancelled and extinguished and be converted into the right to receive the Per Share Amount (the "Merger Consideration") in cash payable to the holder thereof, without interest, promptly upon surrender of the certificate representing such Share or appropriate proof of lost certificates, in accordance with Section 1.5 hereof. From and after the Effective Time, the holders of certificates evidencing ownership of any such Shares outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Shares except as otherwise provided for herein or by applicable Law.
(eb) Without limiting Each Share held in the treasury of the Company and each Share owned by Parent or any direct or indirect wholly owned Subsidiary of Parent (other provisions than Shares held by TRW Investment Management Co., its advisors or employee benefit plans of this Agreement and subject to Sections 6.2(dParent or any of its Subsidiaries) and (e), if at any time during the period between the date of this Agreement and immediately before the Effective Time, Malvern should including without limitation Merger Sub, shall be cancelled and extinguished and no payment or other consideration shall be made with respect thereto. Each share of the Series A Convertible Preferred Stock owned by Parent or any direct or indirect wholly owned subsidiary of Parent immediately before the Effective Time, including without limitation Merger Sub, shall be cancelled and extinguished and no payment or other consideration shall be made with respect thereto.
(ic) split, combine or otherwise reclassify the The shares of Malvern Merger Sub common stock outstanding immediately prior to the Merger shall be converted into 8,000 validly issued, fully paid and non-assessable shares of common stock of the Surviving Corporation, or such other number of such Shares as Parent may determine with notice to the Company prior to the Effective Time (the "Surviving Corporation Common Stock"), which 8,000 shares (iior such other number of shares) make a dividend or other distribution in shares of Malvern the Surviving Corporation Common Stock (including any dividend or other distribution shall constitute all of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares the issued and outstanding capital stock of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Surviving Corporation and shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeowned by Parent.
Appears in 2 contracts
Samples: Merger Agreement (Network Six Inc), Merger Agreement (Saugatuck Capital Co LTD Partnership Iii)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankBuyer, Malvern Seller or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital common stock, par value $0.001 per share, of Buyer (the “Buyer Common Stock”) issued and outstanding immediately before the Effective Time shall remain issued and outstanding and shall not be affected by the Merger.
(b) All shares of common stock, par value $3.50 per share, of Seller issued and outstanding immediately before the Effective Time (the “Seller Common Stock”) that are owned, directly or indirectly, by Seller or Buyer (other than shares of Seller Common Stock held in trust accounts (including grantor or rabbi trust accounts)), managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties (any such shares, “Trust Account Common Shares”)) shall no longer be outstanding, shall automatically be cancelled and shall cease to exist and no stock of First Bank Buyer and no other consideration shall be delivered in exchange therefor.
(c) Subject to Sections 1.4(e), each share of Seller Common Stock, except for shares of Seller Common Stock owned by Seller or Buyer or any of their respective wholly owned Subsidiaries (other than Trust Account Common Shares), shall be converted into the right to receive 3.55 shares (the “Exchange Ratio) of Buyer Common Stock (the “Common Stock Merger Consideration”).
(d) All of the shares of Seller Common Stock converted into the right to receive the Common Stock Merger Consideration pursuant to this Article I shall no longer be outstanding, shall automatically be cancelled and shall cease to exist as of the Effective Time, and each certificate previously representing any such shares of Seller Common Stock (each, a “Certificate”) shall thereafter represent only the right to receive the Common Stock Merger Consideration into which the shares of Seller Common Stock represented by such Certificate have been converted pursuant to this Section 1.4, as well as any dividends to which holders of Seller Common Stock become entitled in accordance with Section 2.2.
(e) If, between the date hereof and the Effective Time, the outstanding shares of Buyer Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the Exchange Ratio. Notwithstanding the foregoing or anything contained in this Agreement to the contrary, the Exchange Ratio shall not be adjusted as a result of the transactions contemplated by that certain Agreement and Plan of Merger by and among VantageSouth Bank, Buyer Bank, and Buyer, dated as of August 10, 2012 (the “VantageSouth Merger Agreement”).
(f) In the event each issued and outstanding share of the Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, stated liquidation amount $1,000 per share, of Seller (the “Seller Series A Preferred Stock” and, together with the Seller Common Stock, the “Seller Shares”) is not purchased or redeemed prior to or contemporaneous with the Effective Time, then each share of the Seller Series A Preferred Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share as of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall automatically be converted into and shall thereafter represent the right to receive, without interestsubject to the other provisions of this Article I, (i) 0.7733 shares one share (the “Exchange Ratio”) of First Bank Common Preferred Stock (the “Stock Merger Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and and, together with the Common Stock Merger Consideration, the “Merger Consideration”); provided) of the Buyer Preferred Stock to be designated, howeverprior to the Closing Date, as Fixed Rate Cumulative Perpetual Preferred Stock, Series B, stated liquidation amount $1,000 per share (the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern “Buyer Series B Preferred Stock” and, together with the Buyer Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existthe “Buyer Shares”), and each holder otherwise having rights, preferences, privileges and voting powers such that the rights, preferences, privileges and voting powers of the Seller Series A Preferred Stock are not adversely affected by such conversion and having rights, preferences and privileges and voting powers, and limitations and restrictions that, taken as a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in whole, are not materially less favorable than the transfer books rights, preferences, privileges and voting powers, and limitations and restrictions of Malvern that the Seller Series A Preferred Stock immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3conversion, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)taken as a whole.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Crescent Financial Bancshares, Inc.), Merger Agreement (Ecb Bancorp Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, pursuant to this Agreement and by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersParent, the shares Company, Merger Sub or the holders of Malvern shall be converted as followsthe Shares:
(a) Each Share then owned by the Company or any direct or indirect Subsidiary of the Company (or held in the Company’s treasury) or owned by Parent, Merger Sub or any direct or indirect Subsidiary thereof immediately prior to the Effective Time shall be canceled and shall cease to exist, and no payment or distribution shall be made or delivered with respect thereto.
(b) Each share of capital stock common stock, par value $0.0001 per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from become one fully paid and after non-assessable share of common stock of the Effective TimeSurviving Corporation.
(bc) Each share of Malvern Common Stock Share issued and outstanding immediately prior to the Effective Time that is held by MalvernTime, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall Shares to be treated canceled pursuant to Section 2.4.
(c3.1(a) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Dissenting Shares) , automatically shall be canceled and converted into the right to receivereceive cash in an amount equal to the Price Per Share, without interest, interest thereon (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, payable to the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares holder thereof upon surrender of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a the stock certificate formerly representing such Share (a “Certificate”) or book-entry share shares (a “Book-Entry ShareShares”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock manner provided in Section 3.2. Such Shares, other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive those canceled pursuant to Section 2.53.1(a), cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with sometimes are referred to herein as the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)“Merger Shares.”
(ed) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period If between the date of this Agreement and the Effective TimeTime the number of outstanding Shares is changed into a different number of shares or a different class, Malvern should (i) splitby reason of any stock dividend, combine or otherwise reclassify the shares of Malvern Common Stocksubdivision, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganizationrecapitalization, recapitalization split-up, combination, exchange of shares or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stockthe like, other than upon pursuant to the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)Merger, the amount of Merger Consideration payable per Merger Share shall be equitably and proportionately correspondingly adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Gen Probe Inc), Merger Agreement (Hologic Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern or their respective shareholdersMerger Subsidiary, the Company or the holders of any shares of Malvern shall be converted as followsCompany Stock or any shares of capital stock of Parent or any shares of capital stock of Merger Subsidiary:
(a) Each Except as otherwise provided in Section 2.02(b), Section 2.04(f) or Section 2.05, each share of capital stock of First Bank Company Stock issued and outstanding immediately prior to the Effective Time shall remain issued be converted into the right to receive, as elected pursuant to and outstanding from as provided in Section 2.03, either (i) Thirty-Three Dollars and after 06/100 ($33.06) in cash, without interest (the Effective Time“Cash Consideration”) or (ii) 1.0819 shares of Parent Class A Common Stock (the “Stock Consideration”, and together with the Cash Consideration, the “Merger Consideration”).
(b) Each share of Malvern Common Company Stock issued and outstanding held by the Company or owned by Parent, Merger Subsidiary or any of their respective Subsidiaries immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant canceled and shall cease to Section 2.4exist, and no consideration shall be delivered in exchange therefor.
(c) Each share of Malvern Common Stock issued and common stock of Merger Subsidiary outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into and become one share of common stock of the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together Surviving Corporation with the Stock Considerationsame rights, powers and privileges as the “Merger Consideration”); provided, however, shares so converted and shall constitute the Merger Consideration may be reduced as provided by Section 8.2(f)only outstanding shares of capital stock of the Surviving Corporation.
(d) All of the shares of Malvern Common Stock, when so Company Stock converted into the right to receive the Merger Consideration pursuant to Section 2.1(c) this Article 2 shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existexist as of the Effective Time, and and, subject to Section 2.04, each holder certificate previously representing any such shares of a certificate Company Stock (each a “Certificate”) or book-entry share uncertificated shares of Company Stock (a the “Book-Entry ShareUncertificated Shares”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereafter represent only the right to receive (i) the Stock Consideration and Per Share Cash Consideration in accordance with Article 3Merger Consideration, including the right, if any, to receive pursuant to Section 2.5, (ii) cash in lieu of fractional shares of First Bank Common Stock into which such the shares of Malvern Common Company Stock represented by such Certificate or Uncertificated Shares have been converted together with the amounts, if any, payable pursuant to this Section 3.1(d) 2.02 and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e2.04(f), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage any dividends or distributions to which holders of Company Stock are entitled in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunderaccordance with Section 2.04(c), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.)
Conversion of Shares. (a) Subject to the provisions of this Article 2Section 1.10(a) and Section 1.14, at the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares of Malvern shall be converted as followsCompany or any Shareholder:
(ai) each Series C Preferred Share outstanding immediately prior to the Effective Time (other than Dissenting Shares as provided in Section 1.14) shall be cancelled and converted solely into the right to receive cash disbursements from the Contingent Revenue Payments, if and when payable, in accordance with Section 1.12 and Section 1.13, and without interest;
(ii) each Series B Preferred Share outstanding immediately prior to the Effective Time (other than Dissenting Shares as provided in Section 1.14) shall be cancelled and converted solely into the right to receive cash disbursements from the Contingent Revenue Payments, if and when payable, in accordance with Section 1.12 and Section 1.13, and without interest;
(iii) each Series A Preferred Share outstanding immediately prior to the Effective Time (other than Dissenting Shares as provided in Section 1.14) shall be cancelled and converted solely into the right to receive cash disbursements from the Contingent Revenue Payments, if and when payable, in accordance with Section 1.12 and Section 1.13, and without interest; and
(iv) each Common Share outstanding immediately prior to the Effective Time (other than Dissenting Shares as provided in Section 1.14) shall be cancelled and converted solely into the right to receive cash disbursements from the Contingent Revenue Payments, if and when payable, in accordance with Section 1.12 and Section 1.13, and without interest.
(b) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any Shareholder:
(i) Each share Company Share held by the Company or owned by Merger Sub, Parent or any direct or indirect wholly-owned Subsidiary of capital stock the Company or of First Bank Parent, immediately prior to the Effective Time, shall be canceled and extinguished without any conversion thereof and no consideration shall be delivered in exchange therefore; and
(ii) Each common share, par value $0.0001 per share, of Merger Sub (the “Merger Sub Common Shares”) issued and outstanding immediately prior to the Effective Time shall remain issued be converted into one validly issued, fully paid and outstanding from and after nonassessable common share, par value $0.001 per share, of the Effective Time.
(b) Surviving Company. Each share certificate evidencing ownership of Malvern Merger Sub Common Stock issued and Shares outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result shall evidence ownership of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with capital of the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Surviving Company.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Luminex Corp), Merger Agreement (Luminex Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective TimeDate, by virtue of the Merger and without any action on the part of First Bank, Malvern SONA or their respective shareholders, EVBS or the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock common stock, par value $0.01 per share, of First Bank SONA (“SONA Common Stock”) issued and outstanding immediately prior to the Effective Time Date shall remain an issued and outstanding from share of common stock of the Continuing Corporation and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern common stock, par value $2.00 per share, of EVBS (“EVBS Common Stock Stock”) issued and outstanding immediately prior to the Effective Time Date that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank SONA or any First Bank Subsidiary EVBS (in each case other than shares of EVBS Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contractedcapacity, that are beneficially owned by third parties) (collectivelyany such shares, the “Canceled EVBS Cancelled Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no consideration shall be delivered in exchange therefor.
(c) Each Subject to Section 2.2 of this Plan of Merger, each share of Malvern EVBS Common Stock Stock, except for EVBS Cancelled Shares, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall Date will cease to be outstanding and will be converted into and exchanged for the right to receive, without interest, (i) 0.7733 receive 0.6313 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable shares of common stock, par value $0.01 per share, of the Continuing Corporation (“Continuing Corporation Common Stock (the “Stock ConsiderationStock”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together together, with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Continuing Corporation Common Stock into which such shares to be paid to former holders of Malvern EVBS Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e2.5 of this Plan of Merger, the “Common Stock Merger Consideration”).
(d) Subject to Section 2.2 of this Plan of Merger, each share of EVBS Non-Voting Mandatorily Convertible Non-Cumulative Preferred Stock, Series B, par value $2.00 per share (“EVBS Series B Preferred Stock”), issued and outstanding immediately prior to the Effective Date will cease to be outstanding and will be converted automatically into and exchanged for the right to receive 0.6313 shares (equal to the Exchange Ratio) of validly issued, fully paid and nonassessable shares of Continuing Corporation Common Stock. The shares of Continuing Corporation Common Stock payable pursuant to this Section 2.1(d), together with any cash in lieu of fractional shares of Continuing Corporation Common Stock to be paid to former holders of EVBS Series B Preferred Stock pursuant to Section 2.5 of this Plan of Merger, shall be referred to as the “Preferred Stock Merger Consideration”, and together with the Common Stock Merger Consideration, the “Merger Consideration.”
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement hereof and the Effective TimeDate, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern SONA Common Stock or any Equity Right EVBS Common Stock shall have been increased, decreased, changed into or exchanged for Malvern Common Stocka different number or kind of shares or securities as a result of a reorganization, other than upon the exercise of any Malvern Stock Options outstanding on the date hereofstock dividend, then (without limiting any other rights of First Bank hereunder)stock split, the Merger Consideration reverse stock split or similar change in capitalization, appropriate and proportionate adjustments shall be equitably and proportionately adjusted, if necessary and without duplication, made to reflect fully the effect of any such changeExchange Ratio.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eastern Virginia Bankshares Inc), Agreement and Plan of Merger (Southern National Bancorp of Virginia Inc)
Conversion of Shares. Subject (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held, directly or indirectly, by any wholly owned Subsidiary of the Company immediately prior to the provisions Effective Time shall be unaffected by the Merger and shall remain outstanding as an equal number of shares of common stock of the Surviving Corporation;
(ii) any shares of Company Common Stock held by the Company (or held in the Company’s treasury) or held, directly or indirectly, by Parent, Merger Sub or any other wholly owned Subsidiary of Parent immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in Sections 1.5(a)(i), 1.5(a)(ii) and 1.5(d), and subject to Sections 1.5(b), 1.5(c) and 1.7, each share of Company Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive (A) 0.225 (the “Exchange Ratio”) of a share of Parent Common Stock, (B) any cash in lieu of fractional shares of Parent Common Stock that the holder of such share is entitled to receive pursuant to Section 1.5(c) and (C) any dividends or other distributions that the holder of such share is entitled to receive pursuant to Section 1.7(d) (the consideration described in clauses “(A),” “(B)” and “(C)” being referred to as “Merger Consideration”); and
(iv) each share of the common stock, $0.001 par value per share, of Merger Sub outstanding immediately prior to the Effective Time will be converted into one share of common stock of the Surviving Corporation.
(b) If, during the period commencing on the date of this Article 2Agreement and ending upon the earlier of (i) the Effective Time and (ii) the valid termination of this Agreement pursuant to Section 8.1 (the “Pre-Closing Period”), the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, or if a stock dividend is declared by the Company during such period, or a record date with respect to any such event occurs during such period, then the Exchange Ratio will be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such action. If, during the Pre-Closing Period, the outstanding shares of Parent Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, or if a stock dividend is declared by Parent during such period, or a record date with respect to any such event occurs during such period, then the Exchange Ratio will be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such action.
(c) No fraction of a share of Parent Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such fractional share shall be issued. Any holder of Company Common Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractions of a share of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, upon surrender of such holder’s Company Stock Certificate(s) or the transfer of Uncertificated Company Shares, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the Parent Measurement Price.
(d) At the Effective Time, by virtue of the Merger and without any action on the part of any Person, each share of Company Restricted Stock that is outstanding and unvested immediately prior to the Effective Time and held by a Continuing Employee or Continuing Service Provider shall be converted, subject to Section 1.5(c), into that number of shares of Parent Restricted Stock equal to the product of (i) the number of shares of Company Common Stock subject to such Company Restricted Stock award, multiplied by (ii) the Exchange Ratio (each such assumed share of Company Restricted Stock, as so adjusted, a share of “Converted Restricted Stock”). Any Converted Restricted Stock issued in accordance with this Section 1.5(d) shall be subject to substantially the same terms and conditions as were applicable to such shares of Company Restricted Stock prior to the Effective Time; provided, however, that all references to the “Company” in each Company Equity Plan and each award agreement shall be deemed to be references to Parent. Notwithstanding anything to the contrary contained in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of First Bankany Person, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each each share of capital stock of First Bank issued Company Restricted Stock that is outstanding and outstanding unvested immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank a Person who is not a Continuing Employee or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) Continuing Service Provider shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)extinguished for no consideration.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at No interest will be paid or will accrue on any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, payable to reflect fully the effect holders of any such changeCompany Stock Certificates or in respect of Uncertificated Company Shares.
Appears in 2 contracts
Samples: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective TimeDate, by virtue of the Merger and without any action on the part of First Bank, Malvern SONA or their respective shareholders, EVBS or the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock common stock, par value $0.01 per share, of First Bank SONA (“SONA Common Stock”) issued and outstanding immediately prior to the Effective Time Date shall remain an issued and outstanding from share of common stock of the Continuing Corporation and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern common stock, par value $2.00 per share, of EVBS (“EVBS Common Stock Stock”) issued and outstanding immediately prior to the Effective Time Date that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank SONA or any First Bank Subsidiary EVBS (in each case other than shares of EVBS Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contractedcapacity, that are beneficially owned by third parties) (collectivelyany such shares, the “Canceled EVBS Cancelled Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no consideration shall be delivered in exchange therefor.
(c) Each Subject to Section 2.2 of this Plan of Merger, each share of Malvern EVBS Common Stock Stock, except for EVBS Cancelled Shares, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall Date will cease to be outstanding and will be converted into and exchanged for the right to receive, without interest, (i) 0.7733 receive 0.6313 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable shares of common stock, par value $0.01 per share, of the Continuing Corporation (“Continuing Corporation Common Stock”) (together, with any cash in lieu of fractional shares of Continuing Corporation Common Stock (to be paid pursuant to Section 2.5 of this Plan of Merger, the “Common Stock Merger Consideration”).
(d) Subject to Section 2.2 of this Plan of Merger, each share of EVBS Non-Voting Mandatorily Convertible Non-Cumulative Preferred Stock, Series B, par value $2.00 per share (“EVBS Series B Preferred Stock”), issued and outstanding immediately prior to the Effective Date will cease to be outstanding and will be converted automatically into and exchanged for the right to receive, at the election of the holder of such share of EVBS Series B Preferred Stock, either: (i) 0.6313 shares (equal to the Exchange Ratio) of validly issued, fully paid and nonassessable shares of Continuing Corporation Common Stock; or (ii) 0.6313 shares (equal to the Exchange Ratio) of validly issued, fully paid and nonassessable shares of non-voting common stock of the Continuing Corporation, par value $7.80 in cash 0.01 per share (“Continuing Corporation Non-Voting Common Stock”). The shares of Continuing Corporation Common Stock and Continuing Corporation Non-Voting Common Stock payable pursuant to this Section 2.1(d) shall be referred to as the “Per Share Cash Preferred Stock Merger Consideration,” ”, and together with the Common Stock Merger Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement hereof and the Effective TimeDate, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern SONA Common Stock or any Equity Right EVBS Common Stock shall have been increased, decreased, changed into or exchanged for Malvern Common Stocka different number or kind of shares or securities as a result of a reorganization, other than upon the exercise of any Malvern Stock Options outstanding on the date hereofstock dividend, then (without limiting any other rights of First Bank hereunder)stock split, the Merger Consideration reverse stock split or similar change in capitalization, appropriate and proportionate adjustments shall be equitably and proportionately adjusted, if necessary and without duplication, made to reflect fully the effect of any such changeExchange Ratio.
Appears in 2 contracts
Samples: Merger Agreement (Eastern Virginia Bankshares Inc), Merger Agreement (Southern National Bancorp of Virginia Inc)
Conversion of Shares. Subject to the provisions of this Article ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of Xxxxxxx, First Bank, Malvern Texas or their respective shareholdersthe shareholders of either of the foregoing, the shares of Malvern First Texas and Xxxxxxx shall be converted as follows:
(a) Each share of capital stock of First Bank Xxxxxxx issued and outstanding immediately prior to the Effective Time (excluding the Xxxxxxx Dissenting Shares) shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern issued First Texas Common Stock issued and outstanding that, immediately prior to the Effective Time that Time, is held by MalvernFirst Texas, any wholly owned Malvern First Texas Subsidiary, by First Bank Xxxxxxx or any First Bank Xxxxxxx Subsidiary (in each case other than shares held in any Malvern Employee Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) contracted (collectively, the “Canceled Shares”)) shall automatically be treated pursuant canceled and retired and shall cease to Section 2.4exist, and no payment shall be made with respect thereto.
(c) Each share of Malvern First Texas Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares and the First Texas Dissenting Shares) shall be converted into the right to receivereceive the following consideration, in each case without interest, :
(i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and ; and
(ii) the Per Share Stock Consideration (together with the Stock Per Share Cash Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern First Texas Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern First Texas that immediately prior to the Effective Time represented shares of Malvern First Texas Common Stock shall cease to have any rights with respect to such Malvern First Texas Common Stock other than the right to receive the Stock Consideration and Per Share Cash Merger Consideration in accordance with Article ARTICLE 3, including the right, if any, to receive pursuant to Section 2.5, 2.5 cash in lieu of fractional shares of First Bank Xxxxxxx Common Stock into which such shares of Malvern First Texas Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d6.2(c) and (ed), if at any time during the period between the date of this Agreement and the Effective Time, Malvern First Texas should (i) split, combine or otherwise reclassify the shares of Malvern First Texas Common Stock, (ii) make a dividend or other distribution in shares of Malvern First Texas Common Stock (including any dividend or other distribution of securities convertible into Malvern First Texas Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern First Texas Common Stock or any Equity Right for Malvern First Texas Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank Xxxxxxx hereunder), the Merger Consideration calculation of the First Texas Shares Outstanding shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Simmons First National Corp), Merger Agreement (Simmons First National Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder of Malvern shall be converted as followsthe Company:
(ai) Each share any shares of capital stock Company Common Stock held by the Company or any wholly-owned Subsidiary of First Bank issued and outstanding the Company (or held in the Company’s treasury) immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder no consideration shall be paid in exchange therefor;
(ii) any shares of a certificate (a “Certificate”) Company Common Stock held by Parent, Merger Sub or bookany other wholly-entry share (a “Book-Entry Share”) registered in the transfer books owned Subsidiary of Malvern that Parent immediately prior to the Effective Time represented shares of Malvern Common Stock shall be canceled and retired and shall cease to have any rights with respect exist, and no consideration shall be paid in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii)” above and subject to such Malvern Sections 1.5(b), 1.5(c) and 1.8, each share of Company Common Stock other than outstanding immediately prior to the Effective Time shall be converted into the right to receive $7.00 in cash, without interest; and
(iv) each share of the Stock Consideration and Per Share Cash Consideration common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation. The amount of cash consideration per share specified in clause “(iii)” of the preceding sentence (as such amount may be adjusted in accordance with Article 3, including Section 1.5(b)) is referred to as the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)“Per Share Merger Price.”
(eb) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between commencing on the date of this Agreement and ending at the Effective Time, Malvern should the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Per Share Merger Price shall be appropriately adjusted; provided, however, that no actions taken with respect to any shares of Company Common Stock held by the Specified Individuals pursuant to this Agreement or the Other Agreements shall be deemed to constitute a stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction for purposes of this Section 1.5(b).
(c) If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other Contract under which the Company has any rights, then: (i) split, combine or otherwise reclassify the Merger Consideration to be paid in exchange for such shares of Malvern Company Common StockStock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition; and (ii) make a dividend such Merger Consideration need not be paid until such time as such repurchase option, risk of forfeiture or other distribution in shares of Malvern Common Stock condition lapses or otherwise terminates. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time: (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii1) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the such Merger Consideration shall remain so unvested and subject to such repurchase option, risk of forfeiture or other condition; (2) such Merger Consideration need not be equitably paid until such time as such repurchase option, risk of forfeiture or other condition lapses or otherwise terminates; and proportionately adjusted, if necessary and without duplication, (3) Parent is entitled to reflect fully the effect of exercise any such changerepurchase option or other right set forth in any such restricted stock purchase agreement or other Contract.
Appears in 2 contracts
Samples: Merger Agreement (Nassda Corp), Merger Agreement (Synopsys Inc)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First BankMerger Sub, Malvern Buyer, Seller, or their respective shareholdersthe Subsidiaries or shareholders of any of the foregoing, the shares of Malvern the constituent corporations to the Merger shall be converted as follows:
(a) The sole membership interest of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically be converted into one share of Seller Common Stock and shall cease to exist from and after the Effective Time. Each share of Seller Common Stock held by Buyer shall remain issued and outstanding from and after the Effective Time.
(b) Each share of capital stock of First Bank Buyer issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Seller Common Stock issued and outstanding immediately prior to the Effective Time (excluding shares of Seller Common Stock held by Seller, Buyer, Community Bank of the Canceled SharesSouth or CharterBank (other than any such shares held in a fiduciary capacity) and excluding shares held by shareholders of Seller who perfect their statutory dissenters’ rights, if applicable, as provided in Section 3.2), shall be converted into the right to receivereceive $20.50 in cash per share of Seller Common Stock, payable to the holder thereof, without interestinterest thereon and less any applicable withholding of Tax, in the manner provided in Article 4 (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All Each share of Seller Common Stock held by Seller, Community Bank of the South or CharterBank (other than any such shares of Malvern Common Stock, when so converted pursuant to Section 2.1(cheld in a fiduciary capacity) shall no longer be outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, exist and each holder no Merger Consideration shall be payable or delivered in exchange therefor.
(e) In the event Seller changes the number of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books shares of Malvern that immediately Seller Common Stock issued and outstanding prior to the Effective Time represented shares as a result of Malvern Common Stock shall cease to have any rights a stock split, stock dividend or similar recapitalization with respect to such Malvern Common Stock other than stock and the right record date or effective date thereof is prior to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Charter Financial Corp), Merger Agreement (Charter Financial Corp)
Conversion of Shares. Subject to the provisions As of this Article 2, at the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern or their respective shareholdersSub, the Company or any holders of shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued the Company:
(i) Each outstanding share of common stock, par value $0.001 per share, of the Company (the “Company Common Stock”) that is held in the treasury of the Company and outstanding immediately prior to any shares of Company Common Stock owned by Parent, Sub or any wholly owned subsidiary of Parent or the Effective Time Company shall remain issued be canceled and outstanding from and after no consideration shall be delivered in exchange therefor (such shares, the Effective Time“Excluded Company Shares”).
(bii) Each Subject to Section 2.3, each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Company Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled other than Excluded Company Shares) shall be converted into the right to receivereceive from Parent (1) an amount in cash, without interest, equal to $58.00 (ithe “Cash Consideration”), (2) 0.7733 shares 0. 2617 (the “Exchange Ratio”) of First Bank a share of common stock, par value $.01 per share (the “Parent Common Stock Stock”), of Parent (the “Stock Consideration”), and (3) one contingent value right (a “CVR”) issued by Parent subject to and in accordance with the CVR Agreement (the consideration contemplated by subclauses (1), (2) and (ii3) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationtogether, the “Merger Consideration”); provided, however, the . Each CVR issued as Merger Consideration may hereunder will be reduced substantially in the form attached as provided by Section 8.2(fAnnex A to the CVR Agreement (the “CVR Certificate”).
(d) . All such shares of Malvern Company Common Stock, when so converted pursuant to Section 2.1(c) converted, shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existretired, and each holder of a certificate or certificates (a the “CertificateCertificates”) or representing any such shares of Company Common Stock, and each holder of non-certificated shares of Company Common Stock represented by book-entry share on the records of the Company or the Company’s transfer agent (a “Book-Entry ShareShares”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock ), shall cease to have any rights with respect to such Malvern Common Stock other than thereto, except the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3Merger Consideration, including the right, if any, to receive pursuant to Section 2.5, any cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d2.2(e) and subject any dividends or other distributions to which such holder is entitled pursuant to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e2.2(d), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeinterest.
Appears in 2 contracts
Samples: Merger Agreement (Abraxis BioScience, Inc.), Merger Agreement (Celgene Corp /De/)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankUBSH, Malvern ANCX or their respective shareholders, any holder of any of the shares of Malvern shall be converted as followsfollowing securities:
(a) Each share of capital stock common stock, par value $1.33 per share, of First Bank UBSH (“UBSH Common Stock”) issued and outstanding immediately prior to the Effective Time shall remain an issued and outstanding from share of common stock of the Continuing Corporation and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern common stock, par value $0.835 per share, of ANCX (“ANCX Common Stock Stock”) issued and outstanding immediately prior to the Effective Time that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank UBSH or any First Bank Subsidiary ANCX (in each case other than shares of ANCX Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contractedcapacity, that are beneficially owned by third parties) (collectivelyany such shares, the “Canceled ANCX Cancelled Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no consideration shall be delivered in exchange therefor.
(c) Each share of Malvern ANCX Common Stock Stock, except for ANCX Cancelled Shares, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall will cease to be outstanding and will be converted automatically into and exchanged for the right to receive, without interest, (i) 0.7733 receive 0.75 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable shares of common stock, par value $1.33 per share, of the Continuing Corporation (“Continuing Corporation Common Stock (the “Stock ConsiderationStock”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationrespect to a given share of ANCX Common Stock, the “Merger Consideration”); providedit being understood that upon the Effective Time, howeverpursuant to Section 2.1(a), UBSH Common Stock, including the Merger Consideration may shares issued to former holders of ANCX Common Stock, shall be reduced as provided by Section 8.2(f)the Continuing Corporation Common Stock, and use its reasonable best efforts to make the Letter of Transmittal available to any such shareholder who requests such Letter of Transmittal following the initial delivery of the Letter of Transmittal.
(d) All shares of Malvern Common StockIf, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement hereof and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern UBSH Common Stock or any Equity Right ANCX Common Stock shall have been increased, decreased, changed into or exchanged for Malvern Common Stocka different number or kind of shares or securities as a result of a reorganization, other than upon stock dividend, stock split, reverse stock split or similar change in capitalization, appropriate and proportionate adjustments shall be made to the exercise of any Malvern Stock Options outstanding on the date hereofExchange Ratio, then (without limiting and any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, amounts payable pursuant to reflect fully the effect of any such changethis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Union Bankshares Corp), Agreement and Plan of Reorganization (Access National Corp)
Conversion of Shares. Subject to the provisions of this Article 2II, at the Effective Time, by virtue of the Merger and and, except as set forth below, without any action on the part of First BankFTK, Malvern RONCO or their respective shareholdersPurchaser or the stockholders of any of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank FTK issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Purchaser's Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall cease to be outstanding and shall be treated pursuant to Section 2.4converted into one share of Common Stock of the Surviving Corporation.
(c) Each share of Malvern RONCO's Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall cease to be outstanding and shall be converted into and exchanged for the right to receivereceive 1.6452794 shares of Common Stock of FTK, without interest, (i) 0.7733 shares assuming the 1 for 89 reverse stock split approved by FTK's shareholders (the “Exchange Ratio”"Reverse Stock Split") of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately becomes effective prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, as adjusted to reflect fully the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into common stock of FTK), as the case may be, occurring after the date hereof and prior to the Effective Time (the "Exchange Ratio") (hereinafter such changeFTK shares shall be referred to as the "Consideration Shares" or the "Merger Consideration"). The Consideration Shares shall, upon issuance and delivery to the stockholders of RONCO in accordance with the terms hereof, be fully paid, validly issued and non-assessable, but shall not be registered securities under the Securities Act of 1933, as amended, (the "Securities Act") pursuant to a valid exemption thereunder. The Reverse Stock Split and Name Change (as defined below) shall be noticed to the NASD pursuant to NASD rules at the time of Closing and may become effective after the Closing as a result of required NASD waiting periods.
Appears in 2 contracts
Samples: Merger Agreement (Ronco Corp), Merger Agreement (Fi Tek Vii Inc)
Conversion of Shares. Subject to the provisions of this -------------------- Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersthe holders thereof, the shares of Malvern PURCHASER and TARGET shall be converted as follows:
(a) Each share of capital stock of First Bank PURCHASER Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern TARGET Common Stock issued and (including any shares currently subject to options which are exercised prior to the Effective Time) outstanding immediately prior to the Effective Time that is Time, other than shares with respect to which the holders thereof, prior to the Effective Time, met the requirements of, and perfected their dissenters' rights under, Article 13 of the GBCC with respect to shareholders dissenting from the Merger (the "Dissenting Shares"), and shares held by Malvern, any wholly owned Malvern Subsidiary, TARGET or by First Bank PURCHASER or any First Bank Subsidiary (of the PURCHASER Subsidiaries, in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) contracted (each an "Outstanding TARGET Share" and, collectively, the “Canceled "Outstanding TARGET Shares”) "), shall automatically be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to converted at the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (receive its Pro-Rata Share of the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) Cash Consideration and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, (plus cash in lieu of fractional shares pursuant to subsection (c) below, if applicable), respectively.
(c) Notwithstanding any other provision of First Bank this Agreement, each holder of Outstanding TARGET Shares exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of PURCHASER Common Stock (after taking into which account all certificates delivered by such shares holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of Malvern a share of PURCHASER Common Stock have been converted together with multiplied by $10.00. No such holder will be entitled to dividends, voting rights, or any other rights as a shareholder in respect of any fractional shares.
(d) Each share of the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)TARGET Common Stock that is not an Outstanding TARGET Share as of the Effective Time shall be cancelled without consideration therefor.
(e) Without limiting No Dissenting Shares shall be converted in the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement Merger. All such shares shall be cancelled and the Effective Timeholders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the GBCC; provided, Malvern should (i) splithowever, combine that if any such shareholder fails to perfect his or otherwise reclassify her rights as a dissenting shareholder with respect to his or her Dissenting Shares in accordance with Article 13 of the GBCC, such shares held by such shareholder shall, upon the happening of Malvern Common Stockthat event, (ii) make a dividend or be treated the same as all other distribution in shares holders of Malvern TARGET Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon who at the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeEffective Time held Outstanding TARGET Shares.
Appears in 2 contracts
Samples: Merger Agreement (Golden Isles Financial Holdings Inc), Merger Agreement (Abc Bancorp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective TimeDate, by virtue of the Merger and without any action on the part of First Bank, Malvern ANB or MFC or their respective shareholders, the shares of Malvern shall be converted as followsstockholders:
(a) Each share of capital stock common stock, par value $1.00 per share, of First Bank ANB (“ANB Common Stock”), that is issued and outstanding immediately prior to before the Effective Time Date shall remain issued and outstanding from and after shall remain unchanged by the Effective TimeMerger.
(b) Each share of Malvern common stock, no par value, of MFC (“MFC Common Stock Stock”) issued and outstanding immediately prior to before the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary Date (in each case other than the Dissenting Shares as defined in Section 2.7) will be converted into and exchanged for 0.33 fully paid and nonassessable shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) ANB Common Stock (collectively, the “Canceled SharesExchange Ratio”) shall be treated pursuant to Section 2.4).
(c) Each share of Malvern Common MFC Series A Preferred Stock issued and outstanding immediately prior to before the Effective Time Date (excluding other than the Canceled SharesDissenting Shares as defined in Section 2.7) shall will be converted into the right to receiveand exchanged for one share of noncumulative perpetual series A preferred stock, without interestpar value $5.00 per share, of ANB (i) 0.7733 shares (the “Exchange RatioANB Series A Preferred Stock”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationpreferences, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(frights and limitations set forth in Exhibit 1.3(a).
(d) All shares of Malvern MFC Common Stock and MFC Series A Preferred Stock (collectively, the “MFC Capital Stock, when so ”) converted pursuant to this Section 2.1(c) 2.1 shall no longer be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder exist as of a the Effective Date.
(e) Each certificate previously representing shares of MFC Common Stock (a “MFC Common Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have represent any rights with respect to such Malvern Common Stock other than except the right to receive with respect to each underlying share of MFC Common Stock (i) a new certificate representing the number of whole shares of ANB Common Stock Consideration and Per Share Cash Consideration into which the shares of MFC Common Stock represented by the MFC Common Certificate have been converted pursuant to this Section 2.1 upon the surrender of such MFC Common Certificate in accordance with Article 3Section 2.2, including the right, if any, to receive pursuant to (ii) in accordance with Section 2.52.3, cash in lieu of fractional shares of First Bank ANB Common Stock, and (iii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.6.
(f) Each certificate previously representing shares of MFC Series A Preferred Stock (a “MFC Preferred Certificate”) shall cease to represent any rights except the right to receive with respect to each underlying share of MFC Series A Preferred Stock (i) a new certificate representing the number of whole shares of ANB Series A Preferred Stock into which the shares of MFC Series A Preferred Stock represented by the MFC Preferred Certificate have been converted pursuant to this Section 2.1 upon the surrender of such MFC Preferred Certificate in accordance with Section 2.2, and (ii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.6.
(g) Each share of MFC Capital Stock held by either party and each share of ANB Common Stock held by MFC or any of the MFC Subsidiaries (as defined herein) prior to the Effective Date (in each case other than in a fiduciary or agency capacity or on behalf of third parties as a result of debts previously contracted) shall be cancelled and retired and shall cease to exist at the Effective Date and no consideration shall be issued in exchange therefor; provided, that such shares of Malvern ANB Common Stock have been converted together with shall resume the amounts, if any, payable pursuant to Section 3.1(d) status of authorized and subject to Section 3.1(e)unissued shares of ANB Common Stock.
(eh) Without limiting the other provisions Each share of this Agreement capital stock of ANB Merger Sub that is issued and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and outstanding immediately before the Effective Time, Malvern should (i) split, combine or otherwise reclassify Date shall remain issued and outstanding and shall remain unchanged by the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeMerger.
Appears in 2 contracts
Samples: Merger Agreement (Midcarolina Financial Corp), Merger Agreement (American National Bankshares Inc)
Conversion of Shares. Subject to the provisions of this Article 23, at -------------------- the Effective Time, by virtue of the Merger and without any action on the part of First BankColony, Malvern Quitman, or their respective shareholdersthe shareholders of either of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank Colony issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Quitman Common Stock (including any shares currently subject to options which are exercised with cash or Option Shares pursuant to Section 3.2 and any Quitman shares issued and that increases the number of outstanding shares of Quitman common stock under Quitman's Restricted Stock Plan prior to the Effective Time) outstanding immediately prior to the Effective Time that is Time, other than shares with respect to which the holders thereof, prior to the Effective Time, met the requirements of, and perfected their dissenters' rights under Article 13 of the GBCC with respect to shareholders dissenting from the Merger (the "Dissenting Shares"), and shares held by Malvern, any wholly owned Malvern Subsidiary, Quitman or by First Bank Colony or any First Bank Subsidiary (of the Colony Subsidiaries, in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall automatically be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to converted at the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (receive its Pro-Rata Share of the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) Cash Consideration and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, (plus cash in lieu of fractional shares pursuant to subsection (c) below, if applicable), respectively. It is anticipated Quitman will have issued and outstanding at the Effective Time 507,262 common shares and 30,307.6431 option equivalent shares which when divided into the Cash Consideration and stock consideration each Quitman shareholder should receive $4.41 cash and .683 shares of First Bank Colony Common Stock into which such shares for each share of Malvern Quitman Common Stock. The actual amount of cash and Colony Common Stock each Quitman Shareholder will receive for each share of Quitman Common Stock the amount of cash and fraction of Colony Common Stock determined by the formula in the first sentence of this Section 3.1(b).
(c) Notwithstanding any other provision of this Agreement, each holder of outstanding Quitman Shares exchanged pursuant to the Merger who would otherwise have been converted together with entitled to receive a fraction of a share of Colony Common Stock (after taking into account all certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Colony Common Stock multiplied by $12.00. No such holder will be entitled to dividends, voting rights, or any other rights as a shareholder in respect of any fractional shares.
(d) Each share of the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Quitman Common Stock that is not an outstanding Quitman Share as of the Effective Time shall be canceled without consideration therefor.
(e) Without limiting No Dissenting Shares shall be converted in the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement Merger. All such shares shall be canceled and the Effective Timeholders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the GBCC; provided, Malvern should (i) splithowever, combine that if any such shareholder fails to perfect his or otherwise reclassify her rights as a dissenting shareholder with respect to his or her Dissenting Shares in accordance with Article 13 of the GBCC, such shares held by such shareholder shall, upon the happening of Malvern Common Stockthat event, (ii) make a dividend or be treated the same as all other distribution in shares holders of Malvern Quitman Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon who at the exercise of any Malvern Stock Options Effective Time held outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeQuitman Shares.
Appears in 2 contracts
Samples: Merger Agreement (Quitman Bancorp Inc), Merger Agreement (Colony Bankcorp Inc)
Conversion of Shares. (i) Subject to the provisions of subparagraphs (ii), (iii), and (iv) of this Article 2Section 1.02(f) and Section 1.02(i), at each share of Graystone Common Stock issued and outstanding immediately prior to the Effective TimeDate shall, on the Effective Date, by virtue reason of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the be converted into and become a right to receive 0.42 shares of Malvern shall be converted as follows:fully paid and nonassessable shares of Tower Common Stock (the “Exchange Ratio”).
(aii) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Graystone Common Stock issued and outstanding immediately prior to the Effective Time that is held in treasury of Graystone or by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Graystone Subsidiary (in each case other than trust account shares held or shares acquired in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of connection with debts previously contracted) as of the Effective Date, if any, shall be cancelled.
(collectivelyiii) No fraction of a whole share of Tower Common Stock and no scrip or certificates therefor shall be issued in connection with the Merger. Any former holder of Graystone Common Stock who would otherwise be entitled to receive a fraction of a share of Tower Common Stock shall receive, in lieu thereof, cash in an amount equal to such fraction of a share multiplied by the Tower Market Share Price.
(iv) Each outstanding share of Tower or Graystone Common Stock the holder of which has perfected his right to dissent under the BCL and has not effectively withdrawn or lost such right as of the Effective Date shall not be converted into or represent a right to receive, or shall remain, shares of Tower Common Stock hereunder, respectively, and the holder thereof shall be entitled only to such rights as are granted by the BCL. The parties shall give each other prompt notice upon receipt of any such written demands for payment of the fair value of such shares of Tower or Graystone Common Stock, resepectively (“Canceled Dissenting Shares”) shall be treated and of withdrawals of such demands and any other instruments provided pursuant to Section 2.4.
the BCL (cany shareholder duly making such demand being hereinafter called a “Dissenting Shareholder”). If any Dissenting Shareholder shall effectively withdraw or lose (through failure to perfect or otherwise) Each share his right to such payment at any time, such holder’s shares of Malvern Graystone Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”receive Tower Common Stock in accordance with Section 1.02(f)(i) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All this Agreement or such holder’s shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Tower Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional remain shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Tower Common Stock, (ii) make a dividend or other distribution . Any payments made in shares respect of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Dissenting Shares shall be equitably and proportionately adjustedmade by Tower, if necessary and without duplication, to reflect fully as the effect of any such changecontinuing corporation after the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Tower Bancorp Inc), Merger Agreement (Tower Bancorp Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankTPB, Malvern Merger Sub, SDI or their respective shareholders, the shares any stockholder of Malvern shall be converted as followsSDI or TPB:
(ai) Each share any shares of capital SDI Common Stock held as treasury stock or held or owned by TPB, Merger Sub or any Subsidiary of First Bank issued and outstanding TPB immediately prior to the Effective Time shall remain issued be canceled and outstanding from retired and after the Effective Time.shall cease to exist, and no consideration shall be delivered in exchange therefor;
(bii) Each share any shares of Malvern TPB Common Stock issued and outstanding held or owned by SDI immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(iii) subject to Section 2.4.
(c1.5(c) Each each share of Malvern SDI Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Sharesshares to be canceled pursuant to Section 1.5(a)(i)) shall be automatically converted solely into the right to receive, without interest, (i) 0.7733 shares (receive a portion of the “Exchange Ratio”) Stock Merger Consideration equal to a fraction of First Bank a share of TPB Common Stock equal to (A) the “total number of shares of TPB Common Stock constituting the Stock Merger Consideration”, divided by (B) (1) the total number of shares of SDI Common Stock outstanding at such date (excluding shares to be canceled pursuant to Section 1.5(a)(i)) plus (2) the total number of shares of SDI Common Stock underlying all SDI Restricted Stock Awards and (ii) $7.80 in cash (SDI RSU Awards that will vest as contemplated by Section 1.5(b), but only to the extent such shares were not outstanding prior to such vesting. Such fraction of a share of TPB Common Stock shall be referred to herein as the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) ” All such shares of Malvern SDI Common Stock, when so converted pursuant to Section 2.1(c) converted, shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist.
(b) Immediately prior to the Effective Time, any and all outstanding issuance and forfeiture conditions on any shares of SDI Common Stock subject to any SDI Restricted Stock Awards or SDI RSU Awards shall be deemed satisfied in full, contingent upon the consummation of the Merger, and the holders of SDI Restricted Stock Awards or SDI RSU Awards will be entitled to receive promptly, and in any event within ten (10) Business Days, after the Effective Time, the Per Share Merger Consideration in respect of each such share of SDI Common Stock, less applicable Taxes and withholdings, with such holder’s aggregate portion of merger consideration rounded up to the next whole share of TPB Common Stock.
(c) No fractional shares of TPB Common Stock shall be issued in connection with the Merger. Any holder of SDI Common Stock who would otherwise be entitled to receive a fraction of a share of TPB Common Stock (after aggregating all fractional shares of TPB Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon surrender by such holder of a certificate Letter of Transmittal in accordance with Section 1.8 and any accompanying documents as required therein, have such holder’s portion of the merger consideration rounded up to the next whole share of TPB Common Stock.
(a “Certificate”d) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that All SDI Options outstanding immediately prior to the Effective Time represented shares of Malvern Common Stock under the SDI Plan shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration be treated in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)5.5.
(e) Without limiting Each share of Merger Sub shall, as of the Effective Time, become a share of the Surviving Company.
(f) Notwithstanding the other provisions of this Agreement and subject Section 1.5, the Stock Merger Consideration, shall be adjusted appropriately to Sections 6.2(d) and (e), if at reflect the effect of any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) stock split, combine or otherwise reclassify the shares of Malvern Common Stockreverse stock split, (ii) make a stock dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern TPB Common Stock), (iii) engage in a reorganization, recapitalization, reclassification, reorganizationcombination, recapitalization or exchange of shares or other like change, or (iv) issue additional change with respect to the number of shares of Malvern SDI Common Stock or any Equity Right for Malvern TPB Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on after the date hereofhereof and prior to the Effective Time so as to provide the holders of shares of SDI Common Stock with the same economic effect as contemplated by this Agreement prior to such event; provided, then (without limiting however, that this sentence shall not be construed to permit SDI to take any other rights of First Bank hereunderaction with respect to its securities that is prohibited by Section 4.1(b), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Turning Point Brands, Inc.), Merger Agreement (Standard Diversified Inc.)
Conversion of Shares. Subject to the provisions (i) Each share of this Article 2Company Common Stock (including Option Shares, at as defined in Section 2.2(c)) issued and outstanding as of the Effective TimeTime (other than shares owned by holders who have properly exercised their rights of appraisal within the meaning of Section 262 of the DGCL ("Dissenting Shares")) shall, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the automatically be converted into that number of shares of Malvern Parent Common Stock as shall be converted obtained by dividing (A) the number of shares obtained by dividing $55,050,000 (including the Parent's obligation with respect to attorneys' fees), less accounts receivable of the Company in the amount of $20,000 and less the Closing Date PC Transaction Fee (as follows:
defined in Section 2.11 hereof), by the Applicable Average Closing Price (aas defined in Section 2.2(a)(iii)) Each share by (B) the total number of capital stock Fully Diluted Shares (as defined below), with the resulting quotient (carried to two decimal places) being referred to herein as the "Exchange Ratio." "Fully Diluted Shares" shall be equal to the total number of First Bank issued and outstanding shares of Company Common Stock, immediately prior to the Effective Time shall remain issued Closing Date, calculated on a fully diluted, fully converted basis as though all convertible debt and outstanding from equity securities and after the Effective Time.
options (bwhether vested or unvested) Each share and warrants had been converted or exercised. The aggregate number of Malvern shares of Parent Common Stock issued and outstanding immediately prior pursuant to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”this Section 2.2(a) shall be treated pursuant referred to Section 2.4in this Agreement as the "Merger Shares.
(c) Each " For purposes of this Agreement, the term "Average Closing Market Price" shall mean the average of the last quoted sale price per share of Malvern Parent Common Stock issued on the Nasdaq National Market during the twenty (20) consecutive trading days ending on (and outstanding including) the earlier of (A) the trading day immediately prior preceding the Closing Date and (B) July 21, 1999. Schedule 2.2 attached hereto sets forth, with respect to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interestInitial Merger Consideration, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common StockAverage Closing Market Price, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), the Exchange Ratio and (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares the aggregate number of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeShares.
Appears in 2 contracts
Samples: Merger Agreement (Lycos Inc), Merger Agreement (Lycos Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time:
(a) Each issued and outstanding share of the common stock of Subco (the "Subco Common Stock"), shall, by virtue of the Merger and without any action on the part of First BankBracknell, Malvern Subco or their respective shareholdersAble, the shares of Malvern shall be converted as follows:
(a) Each into one fully paid and non-assessable share of capital common stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective TimeSurviving Corporation.
(b) Each Except as set forth in Section 2.06, each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malverncommon stock, any wholly owned Malvern Subsidiarypar value $.001 per share, by First Bank or any First Bank Subsidiary of Able (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively"Able Shares"), the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding other than (i) Able Shares held by Able and (ii) Able Shares held by Bracknell or Subco) shall, by virtue of the Canceled Merger and without any action on the part of Bracknell, Subco, Able or any holder thereof, be converted into the right to receive 0.6 (the "Conversion Number") of a fully paid and non-assessable common share of Bracknell (the "Bracknell Common Stock"). The Bracknell Common Stock to be provided to Able stockholders pursuant to this Section 2.02(b) and Section 2.02(d), together with the warrants described in Section 2.02(e), is referred to herein as the "Merger Consideration."
(c) Each Able Share held by Able, Bracknell or Subco shall be cancelled and extinguished without any consideration therefor.
(d) Each Series D Convertible Preferred Share of Able (the "Series D Shares") issued and outstanding immediately prior to the Effective Time (other than (i) Series D Shares held by Able and (ii) Series D Shares held by Bracknell or Subco) shall be converted into the right to receive, without interest, (i) 0.7733 receive the number of shares (the “Exchange Ratio”) of First Bank Bracknell Common Stock (determined by dividing the “Stock Consideration”) aggregate face value of all Series D Shares by $8.25 Canadian dollars and (ii) $7.80 in cash (then dividing that quotient by the “Per Share Cash Consideration,” number of Series D Shares issued and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to before the Effective Time represented shares (the "Series D Conversion Number"). For the purposes of Malvern Common Stock this calculation, the exchange rate between U.S. dollars and Canadian dollars shall cease to have any rights with respect to such Malvern Common Stock other than be the right to receive exchange rate published by the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including Bank of Canada at the right, if any, to receive pursuant to Section 2.5, cash in lieu close of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with business on the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)day before the Closing Date.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(dThe stock appreciation rights described on Schedule 2.02(e) and (e)or, if at any time during such stock appreciation rights have been exchanged for options to acquire Able Shares, such options) (the period between the date of this Agreement and the Effective Time, Malvern should (i"WorldCom Equity Interest") split, combine or otherwise reclassify the shall be converted into warrants to purchase 1,200,000 shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Bracknell Common Stock (including any dividend or other distribution at an exercise price of securities convertible into Malvern Common Stock), (iii) engage $11.66 per share in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares cash. The terms of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration such warrants shall otherwise be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.as set forth in Exhibit A.
Appears in 2 contracts
Samples: Merger Agreement (Bracknell Corp), Merger Agreement (Able Telcom Holding Corp)
Conversion of Shares. Subject to (i) At the provisions of this Article 2, at the Acquisition Merger Effective Time, by virtue of the Acquisition Merger and without any action on the part of First Bank, Malvern Ambanc or their respective shareholders, the Company or the holders of shares of Malvern shall be converted as follows:
(a) Each Ambanc or Company common stock, each outstanding share of capital Company common stock of First Bank issued and outstanding immediately prior to the Acquisition Merger Effective Time shall remain issued be converted into and outstanding from and after represent solely the Effective Timeright to receive without any action by the holder, 1.06 shares of common stock, $.01 par value, of Ambanc (the "Ambanc Common Stock") (the "Exchange Ratio"), subject to adjustment as provided in clause (a)(iv) of this Section (the "Merger Consideration").
(bii) Each share Any shares of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is Company common stock which are owned or held by Malvern, any wholly owned Malvern Subsidiary, by First Bank the Company or any First Bank Subsidiary of its subsidiaries (in each case other than except shares held in any Malvern Benefit Plans qualified plan of the Company or related trust accounts any of its subsidiaries or otherwise held in any a fiduciary or agency capacity or as in satisfaction of a result of debts debt previously contracted) or by Ambanc or any of Ambanc's subsidiaries (collectively, other than in a fiduciary capacity) at the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Acquisition Merger Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented certificates for such shares shall as promptly as practicable be canceled and no shares of Malvern capital stock of Ambanc shall be issued or exchanged therefor.
(iii) At the Acquisition Merger Effective Time, the holders of certificates representing shares of the Company's common stock (the "Company Common Stock Stock") shall cease to have any rights with respect to such Malvern Common Stock other than as stockholders of the Company, except the right to receive the Stock Merger Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)as provided herein.
(eiv) Without limiting If the other provisions holders of this Agreement and subject Ambanc Common Stock shall have received or shall have become entitled to Sections 6.2(d) and (e)receive, if at any time without payment therefor, during the period between commencing within five days prior to the date of this Agreement hereof and ending with the Acquisition Merger Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern common stock or other securities for their stock by way of a stock split, stock dividend, reclassification, combination of shares, spinoff or similar corporate rearrangement or Ambanc shall exchange Ambanc Common Stock for a different number or any Equity Right for Malvern Common Stock, other than upon the exercise kind of any Malvern shares or securities ("Stock Options outstanding on the date hereofAdjustment"), then (without limiting any other rights the amount of First Bank hereunder), Ambanc Common Stock to be exchanged at the Acquisition Merger Consideration Effective Time for Company Common Stock shall be equitably and proportionately adjusted, if necessary and without duplication, adjusted to reflect fully the effect of any take into account such changeStock Adjustment.
Appears in 2 contracts
Samples: Reorganization and Merger Agreement (Ambanc Holding Co Inc), Reorganization and Merger Agreement (Afsala Bancorp Inc)
Conversion of Shares. Subject to the provisions of this Article ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of First BankVeritex, Malvern Merger Sub, Green or their respective shareholdersthe shareholders of any of the foregoing, the shares of Malvern the relevant corporations shall be converted as follows:
(a) Each share of capital stock of First Bank Veritex issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock of Green, as the surviving corporation in the Merger.
(c) Each share of Green Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernGreen, any wholly owned Malvern Green Subsidiary, by First Bank Veritex or any First Bank Veritex Subsidiary (in each case other than shares held in any Malvern Employee Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall automatically be treated pursuant canceled and retired and shall cease to Section 2.4exist, and no payment shall be made with respect thereto.
(cd) Each share of Malvern Green Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 receive 0.79 shares (the “Exchange Ratio”) of First Bank Veritex Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(de) All shares of Malvern Green Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and 2.1(d), shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern Green that immediately prior to the Effective Time represented shares of Malvern Green Common Stock shall cease to have any rights with respect to such Malvern Green Common Stock other than the right to receive the Stock Consideration and Per Share Cash Merger Consideration in accordance with Article ARTICLE 3, including the right, right (if any, ) to receive pursuant to Section 2.52.4, cash in lieu of fractional shares of First Bank Veritex Common Stock into which such shares of Malvern Green Common Stock have been converted together with the amounts, amounts (if any, ) payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(ef) Without limiting At the other provisions effective time of this Agreement the Second Merger, each share of (a) Veritex Common Stock issued and subject outstanding immediately prior to Sections 6.2(d) such time shall remain issued and outstanding and shall not be affected by the Second Merger and (e)b) common stock of Green, if at any as the surviving corporation in the Merger, issued and outstanding immediately prior to such time during the period between the date of this Agreement shall be canceled and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), shall cease to exist and neither the Merger Consideration nor any other consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changedelivered in exchange therefor.
Appears in 2 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Agreement and Plan of Reorganization (Veritex Holdings, Inc.)
Conversion of Shares. Subject to the provisions As of this Article 2, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as followsany holder thereof:
(a) Each share of capital stock of First Bank Sub that is issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from become one fully paid and after nonassessable share of Common Stock, par value $.01 per share, of the Effective TimeSurviving Corporation.
(b) Each share All shares of Malvern common stock, par value $.01 per share, of Company ("Company Common Stock issued and outstanding immediately prior to the Effective Time Stock") or other capital stock of Company that is held are owned by Malvern, Company as treasury stock or by any wholly owned Malvern Subsidiary, by First Bank or any First Bank Company Subsidiary (as defined in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”Section 3.4) shall be treated pursuant canceled and retired and shall cease to Section 2.4exist and no stock of Parent or other consideration shall be delivered in exchange therefor.
(c) Each Subject to Section 1.3(c), each share of Malvern Company Common Stock that is issued and outstanding immediately prior to the Effective Time (excluding the Canceled Sharesother than shares to be canceled in accordance with Section 1.2(b)) shall be converted into the a right to receive, without interest, (i) 0.7733 shares receive 0.28073 (the “"Exchange Ratio”") of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Class A Common Stock, par value $.01 per share, of Parent ("Parent Class A Common Stock"). All such shares of Company Common Stock, when so converted pursuant to Section 2.1(c) converted, shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate previously representing any such shares (a “"Certificate”") or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereafter represent the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu that number of fractional shares of First Bank Parent Class A Common Stock into which such shares of Malvern Company Common Stock have been converted together converted. Certificates previously representing shares of Company Common Stock shall be exchanged for certificates representing whole shares of Parent Class A Common Stock, and cash in lieu of any fractional share, issued in consideration therefor upon the surrender of such certificates in accordance with the amountsSection 1.3, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)without interest.
(ed) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between If after the date of this Agreement hereof and prior to the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make Parent shall have declared a dividend or other distribution in shares of Malvern Common Stock stock split (including any dividend or other distribution a reverse split) of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Parent Class A Common Stock or a dividend payable in Parent Class A Common Stock or effected any Equity Right for Malvern Common Stock, recapitalization or reclassification of its common stock or any other than upon the exercise of any Malvern Stock Options outstanding on the date hereofsimilar transaction, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Exchange Ratio shall be equitably and proportionately adjusted, if necessary and without duplication, appropriately adjusted to reflect fully the effect of any such changestock split, dividend, recapitalization, reclassification or similar transaction.
Appears in 2 contracts
Samples: Merger Agreement (Cruise America Inc), Merger Agreement (Budget Group Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as followsany Party:
(a) Each share of capital stock common stock, par value $0.01 per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued cease to be outstanding and outstanding from shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, so that, after the Effective Time, the Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation’s common stock.
(b) Each share holder (including, if applicable, any wholly owned Subsidiary of Malvern the Parent (other than Merger Sub) or any wholly owned Subsidiary of the Company) of outstanding common stock, par value $0.01 per share, of the Company (excluding any Cancelled Shares) (the “Company Common Stock issued Stock”), Series A Preferred Stock, par value $0.01 per share, of the Company (excluding any Cancelled Shares) (the “Series A Preferred Stock”) and outstanding Series B Preferred Stock, par value $0.01 per share, of the Company (excluding any Cancelled Shares) (the “Series B Preferred Stock” and, together with the Series A Preferred Stock, the “Company Preferred Stock”) immediately prior to the Effective Time shall have its shares converted into the right to receive (without interest) the number of shares of Specified Parent Common Stock set forth opposite such Stockholder’s name on Section 3.1(b) of the Company Disclosure Schedule. All such shares of Company Common Stock and Company Preferred Stock shall thereafter cease to be outstanding, shall automatically be canceled, extinguished and retired and shall cease to exist. Each such Stockholder shall also be entitled to receive a portion of the Closing Date Cash Merger Consideration payable to the Stockholders’ Representative (for the account of and on behalf of the Stockholders) under this Agreement, which portion shall be determined in accordance with that is held by Malverncertain Direction Letter, any wholly owned Malvern Subsidiarydated as of the Execution Date, by First Bank or any First Bank Subsidiary among the Stockholders’ Representative and the Stockholders (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled SharesDirection Letter”) ). The Stockholders and the Stockholders’ Representative acknowledge and agree that Parent shall not be treated obligated to pay aggregate consideration in connection with the Merger in excess of the Final Cash Merger Consideration (as finally determined pursuant to Section 2.44.3), the Specified Parent Common Stock, the Escrow Amount, the Closing Indebtedness, the Transaction Expenses, any consideration to be paid pursuant to Section 4.1(b) and (c) and any indemnification obligations of Parent pursuant to this Agreement.
(c) Each share Company Share held in the treasury of Malvern Common Stock issued and outstanding the Company or by the Parent or Merger Sub immediately prior to the Effective Time (excluding the Canceled “Cancelled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existwithout any conversion thereof, and each holder of a certificate (a “Certificate”) no payment or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock distribution shall cease to have any rights be made with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)thereto.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersMerger Sub, the shares Company or the holder of Malvern shall be converted as followsany of the securities specified below:
(a) Each share of capital stock of First Bank Share issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from be converted into the right to receive one share of Series A Preferred Stock, deliverable to the holder thereof upon surrender of the certificate representing such Share in accordance with Section 1.07 hereof. From and after the Effective Time.
(b) Each share , the holders of Malvern Common Stock issued and certificates evidencing ownership of Shares outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock Shares except as otherwise provided for herein or by applicable law. No other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Series A Preferred Stock into which such shares shall be issued or outstanding as of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Effective Time.
(eb) Without limiting Each issued and outstanding share of Common Stock of Merger Sub, no par value per share (the other provisions of this Agreement and subject to Sections 6.2(d) and (e"Merger Sub Common Stock"), if shall, at any time during the period between the date of this Agreement and the Effective Time, Malvern should constitute one validly issued, fully paid and non-assessable share of common stock, no par value, of the Surviving Corporation (i) splitthe "Surviving Company Common Stock"). Immediately prior to the Effective Time, combine or otherwise reclassify Parent will hold 100% of the Merger Sub Common Stock. No other shares of Malvern Surviving Company Common Stock shall be issued in connection with the Merger.
(c) Each issued and outstanding share of Series B Preferred Stock of Merger Sub of Merger Sub, no par value per share (the "Merger Sub Series B Preferred Stock"), shall, at the Effective Time, constitute one validly issued, fully paid and non-assessable share of common stock, no par value, of the Surviving Corporation (ii) make a dividend or the "Surviving Company Series B Preferred Stock"). Immediately prior to the Effective Time, Parent will hold 100% of the Merger Sub Series B Preferred Stock. No other distribution in shares of Malvern Common Surviving Company Series B Preferred Stock (including any dividend or shall be issued in connection with the Merger, although other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Surviving Company Series B Preferred Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably issued pursuant to this Agreement and proportionately adjustedsuch further issuances are hereby irrevocably consented to by Parent and each Shareholder, if necessary and without duplication, to reflect fully the effect of which consent need not be effected by any future act by Parent or such changeShareholders.
Appears in 2 contracts
Samples: Merger Agreement (Thomas Pharmaceuticals, Ltd.), Merger Agreement (Ivoice, Inc /De)
Conversion of Shares. Subject (a) At the Effective Time, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”) issued and outstanding immediately prior to the provisions Effective Time (other than shares of this Article 2Common Stock to be cancelled pursuant to Section 3.1(d) hereof and Dissenting Shares) shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive $34.50 in cash (the “Merger Consideration”), without any interest thereon.
(b) Each share of common stock, par value $0.01 per share, of Sub issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each into one fully paid and nonassessable share of capital stock the common stock, par value $1.00 per share, of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4Surviving Corporation.
(c) Each share of Malvern Common the Company’s Series A $2.40 Cumulative Convertible Preferred Stock (the “Convertible Preferred Stock”) issued and outstanding immediately prior to the Effective Time (excluding the Canceled other than shares of Convertible Preferred Stock to be cancelled pursuant to Section 3.1(d) hereof and Dissenting Shares) shall shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receivereceive the Merger Consideration, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)any interest thereon.
(d) All shares of Malvern Common StockStock and Convertible Preferred Stock that are owned by the Company as treasury stock and any shares of Common Stock or Convertible Preferred Stock owned by Parent, when so converted pursuant Sub or any other direct or indirect wholly owned Subsidiary of Parent or the Company immediately prior to Section 2.1(c) shall no longer the Effective Time shall, at the Effective Time, be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(e) At the Effective Time, each holder share of a certificate (a “Certificate”Common Stock and Convertible Preferred Stock converted into the right to receive the Merger Consideration without any interest thereon pursuant to Section 3.1(a) or book-entry share (a “Book-Entry Share”and Section 3.1(c) registered in shall be automatically cancelled and shall cease to exist, and the transfer books of Malvern that holders immediately prior to the Effective Time of shares of outstanding Common Stock or Convertible Preferred Stock not represented by certificates (“Book-Entry Shares”) and the holders of certificates that, immediately prior to the Effective Time, represented shares of Malvern outstanding Common Stock or Convertible Preferred Stock (the “Certificates”) shall cease to have any rights with respect to such Malvern shares of Common Stock or Convertible Preferred Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration receive, upon surrender of such Book-Entry Shares or Certificates in accordance with Article 3Section 3.2, including the rightMerger Consideration, if anywithout any interest thereon, to receive pursuant to Section 2.5, cash in lieu for each such share of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Convertible Preferred Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeheld by them.
Appears in 2 contracts
Samples: Merger Agreement (J.M. Tull Metals Company, Inc.), Merger Agreement (Ryerson Inc.)
Conversion of Shares. Subject (a) In accordance with the Merger Agreement, (i) each share of Acquisition Corp. common stock issued and outstanding immediately prior to the provisions of this Article 2, at the Effective TimeTime shall, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted at and as follows:
of the Effective Time into one share of common stock of VCI, and (aii) Each each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock VCI issued and outstanding immediately prior to the Effective Time (excluding the Canceled except those shares which are Dissenting VCI Shares) shall shall, by virtue of the Merger and without any action on the part of the Holders, be converted at and as of the Effective Time into the right to receivereceive that number of shares of HCC common stock, without interestas illustrated on Exhibit B attached hereto, equal to the amount determined by dividing the (i1) 0.7733 shares lesser of (A) $103,500,000 (less any adjustments required by Section 6.12 hereof) (the “Exchange Ratio”"Numerator") divided by the average closing price of First Bank Common Stock HCC common stock on the Nasdaq National Market (or if not so listed, the “Stock Consideration”average closing bid price on such other market in which such prices are regularly quoted) for the ten consecutive trading days immediately preceding the business day prior to the Closing Date as reported in The Wall Street Journal, and (iiB) $7.80 in cash (the “Per Share Cash Consideration,” and together with number of shares that is equal to the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All number of shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be HCC common stock outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented less one share, by (2) the total number of shares of Malvern Common Stock capital stock of VCI outstanding immediately prior to the Closing (including for this purpose any capital stock of VCI issuable under then outstanding options, warrants or other convertible securities, in each case whether or not vested or exercisable) and carrying the quotient thereof out to three decimal places (the "Exchange Ratio"). The Holders shall cease receive only whole shares of HCC common stock (or if the provisions of Section 2.3(b)(ii) are applicable, the surviving corporation's or acquiring corporation's capital stock) and, in lieu of any fractional share of HCC common stock, Holders shall receive in cash the fair market value of such fractional share (rounded up or down to have the nearest whole number, with a fractional interest equal to .5 rounded to the next whole number), valuing HCC common stock (or if the provisions of Section 2.3(b)(ii) are applicable, the surviving corporation's or acquiring corporation's capital stock) at the closing price for such stock on the Nasdaq National Market on the trading day immediately preceding the Closing Date.
(b) If on or before the Effective Time (i) the issued and outstanding shares of HCC common stock are changed into a different number of shares by reason of any rights with respect to such Malvern Common Stock other than recapitalization, stock split or stock dividend, then the right to receive number of shares of HCC common stock received by the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive Holders pursuant to Section 2.5, cash in lieu 2.3(a) above (the "Conversion Stock") shall be adjusted to that number and class of fractional shares of First Bank Common common stock of HCC, that would have been issued to the Holders if the Conversion Stock had been issued to the Holders immediately prior to such recapitalization, stock split or stock dividend; or (ii) there shall be a merger, share exchange or consolidation of HCC with or into which another corporation or entity, as part of such merger, share exchange or consolidation, then the Conversion Stock shall be adjusted to that number and class of shares of Malvern Common Stock stock of the surviving corporation resulting from such merger or consolidation or the acquiring corporation in such share exchange, that would have been converted together with issued to the amountsHolders if the Conversion Stock had been issued to the Holders immediately prior to such merger, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions share exchange or consolidation. For purposes of this Agreement Section 2.3(b), (i) the determination of the adjustment to the number and class of shares shall be based on the formula set forth in Section 2.3(a)(ii), assuming that the Effective Time is the day immediately prior to the subject to Sections 6.2(d) recapitalization, stock split, stock dividend, merger, share exchange or consolidation and (e)ii) in the event of a merger, if at any time during the period between the date share exchange or consolidation of this Agreement and HCC prior to the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (iiVCI common stock being converted under Section 2.3(a) make a dividend or other distribution in shall be converted into shares of Malvern Common Stock (including any dividend the surviving corporation's or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeacquiring corporation's capital stock.
Appears in 2 contracts
Samples: Merger Agreement (Healthcentral Com), Agreement and Plan of Reorganization and Merger (Healthcentral Com)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Company Merger and without any action on the part of First Bank, Malvern or their respective shareholdersthe holders thereof, the shares of Malvern Purchaser Common Stock and Target Common Stock issued and outstanding immediately prior to the Effective Time shall be converted as follows:
(a) Each share of capital stock of First Bank Purchaser Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each At the Effective Time, each share of Malvern Target Common Stock issued and (including any shares currently subject to options which are exercised prior to the Effective Time) outstanding immediately prior to the Effective Time that is Time, other than (i) shares with respect to which the holders thereof, prior to the Effective Time, met the requirements of, and perfected their dissenters’ rights under, Article 13 of the GBCC with respect to shareholders dissenting from the Company Merger (the “Dissenting Shares”), and (ii) shares held by Malvern, any wholly owned Malvern Subsidiary, Target or by First Bank Purchaser or any First Bank Subsidiary (of the Purchaser Subsidiaries, in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) (each an “Outstanding Target Share” and, collectively, the “Canceled Outstanding Target Shares”) ), shall automatically be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to converted at the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivereceive cash and shares of Purchaser Common Stock, without interestplus cash in lieu of fractional shares pursuant to Section 3.1(i) below, as set forth in this Section 3.1. Subject to the remaining provisions of this Section 3.1, each Target shareholder who does not dissent may elect to have each Outstanding Target Share held by such Target Shareholder converted into (i) 0.7733 shares cash in an amount equal to a Pro Rata Share of the Merger Consideration (the “Exchange RatioCash Consideration”) or (ii) a number of First Bank shares of Purchaser Common Stock (the “Stock Consideration”) equal to a Pro Rata Share of the Merger Consideration divided by the Average Market Price.
(c) Purchaser and Target shall each use its commercially reasonable efforts to mail to each holder of shares of Target Common Stock outstanding on the record date fixed for the Shareholders’ Meeting (the “Record Date”) a form (“Form of Election”) designed for the purpose of allowing the shareholder to elect, subject to the proration and election procedures set forth in this Section 3.1, whether to receive (i) the Cash Consideration for all of his or her Outstanding Target Shares (a “Cash Election”), (ii) $7.80 the Stock Consideration for all of his or her Outstanding Target Shares (a “Stock Election”), or (iii) the Cash Consideration and the Stock Consideration for his or her Outstanding Target Shares in cash the relative proportions specified by such Target shareholder (a “Combination Election”). Target shareholders who hold such shares as nominees, trustees or in other representative capacities (a “Representative”) may submit multiple Forms of Election, provided that such Representative certifies that each such Form of Election covers all the shares of Target Common Stock held by each such Representative for a particular beneficial owner. A Form of Election must be received by the Exchange Agent no later than by the close of business five (5) days prior to the Effective Time (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger ConsiderationElection Deadline”); provided, however, the Merger Consideration may ) in order to be reduced as provided by Section 8.2(f)effective. All elections shall be irrevocable.
(d) Prior to the Effective Time, Purchaser shall select a bank or trust company reasonably acceptable to Target to act as exchange agent (the “Exchange Agent”) to effectuate the delivery of the Cash Consideration and the Stock Consideration to holders of Target Common Stock. Elections shall be made by holders of Target Common Stock by mailing, faxing or otherwise delivering to the Exchange Agent a Form of Election. To be effective, a Form of Election must be properly completed, signed and submitted to the Exchange Agent. Purchaser shall have the discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted and to disregard immaterial defects in Forms of Election. The decision of Purchaser (or the Exchange Agent) in such matters shall be conclusive and binding. Neither Purchaser nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election.
(e) A holder of Target Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Deadline shall be deemed to have made a Combination Election to receive the Cash Consideration for 50% of his or her Outstanding Target Shares and the Stock Consideration for 50% of his or her Outstanding Target Shares (an “Equal Cash/Stock Election”). If Purchaser or the Exchange Agent shall determine, in its sole discretion, that any purported Cash Election, Stock Election or Combination Election was not properly made, such purported election shall be deemed to be of no force and effect, and the Target shareholder making such purported election shall for purposes hereof be deemed to have made an Equal Cash/Stock Election.
(f) All shares of Malvern Target Common Stock which are subject to Cash Elections or the cash portion of Combination Elections are referred to herein as “Cash Election Shares.” All shares of Target Common Stock which are subject to Stock Elections or the stock portion of Combination Elections are referred to herein as “Stock Election Shares.” The sum of the number of Dissenting Shares and the number of Cash Election Shares shall not be greater than 60% of the sum of the Outstanding Target Shares and the number of Dissenting Shares (the “Maximum Cash Election Number”). The number of Stock Election Shares shall not be greater than 65% of the number of Outstanding Target Shares (the “Maximum Stock Election Number”).
(g) If, after the results of the Forms of Election are calculated, the number of Stock Election Shares exceeds the Maximum Stock Election Number, then the Exchange Agent shall determine the number of Stock Election Shares which must be redesignated as Cash Election Shares, and all Target shareholders who have Stock Election Shares (other than any Target shareholder who has made an Equal Cash/Stock Election) shall, on a pro rata basis, have such number of their Stock Election Shares redesignated as Cash Election Shares so that the Maximum Stock Election Number is achieved. If, after the results of the Forms of Election are calculated, the number of Cash Election Shares exceeds the Maximum Cash Election Number, then the Exchange Agent shall determine the number of Cash Election Shares which must be redesignated as Stock Election Shares, and all Target shareholders who have Cash Election Shares (other than any Target shareholder who has made an Equal Cash/Stock Election) shall, on a pro rata basis, have such number of their Cash Election Shares redesignated as Stock Election Shares so that the Maximum Cash Election Number is achieved. Purchaser or the Exchange Agent shall make all computations contemplated by this Section 3.1, and all such computations shall be conclusive and binding on the holders of Target Common Stock.
(h) After the redesignation procedure set forth in Section 3.1(g) above is completed, when so all Cash Election Shares shall be converted pursuant into the right to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existreceive the Cash Consideration, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common all Stock Election Shares shall cease to have any rights with respect to such Malvern Common Stock other than be converted into the right to receive the Stock Consideration. Such certificates previously evidencing shares of Target Common Stock (“Old Certificates”) shall be exchanged for (i) certificates evidencing the Stock Consideration or (ii) the Cash Consideration, multiplied in each case by the number of shares previously evidenced by the canceled certificate, upon the surrender of such certificates in accordance with the provisions of Section 3.2 hereof, without interest. Notwithstanding the foregoing, however, no fractional shares of Purchaser Common Stock shall be issued, and, in lieu thereof, a cash payment shall be made pursuant to Section 3.1(i) below.
(i) Notwithstanding any other provision of this Agreement, each holder of Outstanding Target Shares exchanged pursuant to the Company Merger who would otherwise have been entitled to receive a fraction of a share of Purchaser Common Stock as Stock Consideration (after taking into account all certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Purchaser Common Stock multiplied by the Average Market Price. No such holder will be entitled to dividends, voting rights, or any other rights as a shareholder in respect of any fractional shares.
(j) Each share of the Target Common Stock that is not an Outstanding Target Share as of the Effective Time shall be cancelled without consideration therefor.
(k) No Dissenting Shares shall be converted in the Company Merger. All such shares shall be cancelled and Per Share Cash Consideration the holders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the GBCC; provided, however, that if any such shareholder fails to perfect his or her rights as a dissenting shareholder with respect to his or her Dissenting Shares in accordance with Article 313 of the GBCC, including such shares held by such shareholder shall, upon the righthappening of that event, if any, to receive pursuant to Section 2.5, cash in lieu be treated the same as all other holders of fractional shares of First Bank Target Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if who at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeTime held Outstanding Target Shares.
Appears in 2 contracts
Samples: Merger Agreement (First National Banc Inc), Merger Agreement (Abc Bancorp)
Conversion of Shares. Subject to The manner and basis of converting the provisions shares of this Article 2, at stock of each of the Constituent Corporations will be as follows:
(a) At the Effective Time, each share of Company Common Stock, par value $.01 per share ("COMPANY COMMON STOCK"), which is issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares (as defined in Section 2.6(a)), and (ii) shares of Company Common Stock held of record by Parent or Purchaser or any other direct or indirect wholly-owned subsidiary of Parent or Company immediately prior to the Effective Time) will, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into and represent the right to receivereceive (as provided in Section 2.8) the Per Share Amount in cash (the "MERGER CONSIDERATION"), without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the rightprorated for fractional shares, if any, to receive . Any payment made pursuant to this Section 2.5, cash in lieu 2.5(a) and Section 2.8 will be made net of fractional shares of First Bank Common Stock into which applicable withholding taxes to the extent such shares of Malvern Common Stock have been converted together with withholding is required by law. Notwithstanding the amountsforegoing, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)Shares, the Merger Consideration will be correspondingly adjusted on a per share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.
(b) At the Effective Time, each share of Purchaser Common Stock, par value $.01 per share ("PURCHASER COMMON STOCK"), which is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into and exchanged for one fully paid and nonassessable share of common stock of the Surviving Corporation ("SURVIVING CORPORATION COMMON STOCK"), which will constitute the only issued and outstanding shares of capital stock of the Surviving Corporation immediately after the Effective Time. From and after the Effective Time, each outstanding certificate theretofore representing shares of Purchaser Common Stock will be deemed for all purposes to evidence ownership and to represent the same number of shares of Surviving Corporation Common Stock.
(c) At the Effective Time, each share of Company Common Stock held of record by Parent or Purchaser or any other direct or indirect wholly-owned subsidiary of Parent or Company immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled and cease to exist, and no payment shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changemade with respect thereto.
Appears in 2 contracts
Samples: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder of Malvern shall be converted as followsthe Company or Parent:
(ai) Each share any shares of capital Company Capital Stock held as treasury stock or held or owned by the Company or Merger Sub, or any Subsidiary of First Bank issued and outstanding the Company immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5(c), each holder share of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Capital Stock outstanding immediately prior to the Effective Time represented (excluding shares of Malvern Common Stock to be canceled pursuant to Section 1.5(a)(i) and excluding Dissenting Shares) shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Exchange Ratio (the “Merger Consideration”).
(b) If any shares of Company Capital Stock Consideration outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Capital Stock will to the same extent be unvested and Per Share Cash Consideration subject to the same repurchase option or risk of forfeiture, and such shares of Parent Common Stock shall accordingly be marked with appropriate legends.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Capital Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon surrender by such holder of a letter of transmittal in accordance with Article 3Section 1.7 and any accompanying documents as required therein, including be paid in cash the rightdollar amount (rounded to the nearest whole cent), if anywithout interest, determined by multiplying such fraction by the Parent Closing Price.
(d) All Company Options outstanding immediately prior to receive pursuant to the Effective Time under the Company Plans shall be treated in accordance with Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)5.5.
(e) Without limiting Each share of common stock, $0.0001 par value per share, of Merger Sub issued and outstanding immediately prior to the other provisions Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of this Agreement and subject to Sections 6.2(dcommon stock, $0.0001 par value per share, of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.
(f) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding shares of Company Capital Stock or Parent Common Stock shall have been changed into, or exchanged for, a different Table of Contents number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange of shares or other like change, or (iv) issue additional shares the Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Malvern Company Capital Stock and Parent Common Stock with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the Company or Parent to take any Equity Right for Malvern action with respect to Company Capital Stock or Parent Common Stock, other than upon respectively, that is prohibited or not expressly permitted by the exercise terms of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changethis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Versartis, Inc.), Merger Agreement
Conversion of Shares. Subject to the provisions As of this Article 2, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersSub, the shares Company or the holders of Malvern shall be converted as followsany securities of the Constituent Corporations:
(a) Each issued and outstanding partnership interest of Sub, shall be canceled and converted into and thereafter represent one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation, par value $1.00 per share, which newly issued shares shall constitute all of the issued and outstanding capital stock of First Bank issued the Surviving Corporation.
(b) All Shares that are held in the treasury of the Company and outstanding all Shares owned by Parent or by any Subsidiary of Parent immediately prior to the Effective Time shall remain issued be canceled, and outstanding from and after the Effective Time.
(b) Each share no capital stock of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank Parent or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) consideration shall be treated pursuant to Section 2.4delivered in exchange therefor.
(c) Each share Subject to the provisions of Malvern Common Stock Section 2.5(d), each Share issued and outstanding immediately prior to the Effective Time (excluding the Canceled Sharesother than shares to be canceled in accordance with Section 2.5(b) and other than Dissenting Shares (as defined in Section 2.5(d)) shall be canceled and converted into the right to receivereceive from the Surviving Corporation the Offer Price in cash, without interest, (i) 0.7733 shares interest (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “"Merger Consideration”"); provided, however, upon surrender of the Merger Consideration may be reduced certificate representing such Share as provided by in Section 8.2(f).
(d) 2.6 of this Agreement. All shares of Malvern Common Stocksuch Shares, when so converted pursuant to Section 2.1(c) converted, shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existretired, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock representing any such Shares shall cease to have any rights with respect to such Malvern Common Stock other than thereto, except the right to receive the Stock Consideration Merger Consideration.
(d) Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, Shares that are issued and Per Share Cash Consideration outstanding immediately prior to the Effective Time that have not been voted for adoption of this Agreement and are held by holders who have properly exercised appraisal rights with respect thereto in accordance with Article 3Section 262 of the DGCL (the "Dissenting Shares") will not be converted into the right to receive the Merger Consideration, including and holders of such Shares will be entitled to receive payment of the appraised value of such Shares in accordance with the provisions of such Section 262 unless and until such holders fail to perfect, or effectively withdraw or lose, their rights to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect, or effectively withdraws or loses, such right, then such Shares will thereupon be treated as if they had been converted into, at the Effective Time, the right to receive the Merger Consideration, without any interest thereon, pursuant to Section 2.5(c). Prior to the Effective Time, the Company will give Parent prompt written notice and copies of (i) any demands received by the Company for appraisals of Shares and (ii) all written and electronic communications between the Company and its representatives, on the one hand, and the dissenting stockholders and their representatives, on the other hand relating thereto. The Company shall give Parent the opportunity to participate in and direct all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal or offer to settle, settle or otherwise negotiate any such demands. Each Dissenting Share, if any, shall be canceled after payment in respect thereof made to receive the holder thereof pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)DGCL.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Ebro Puleva Partners G.P.), Merger Agreement (Riviana Foods Inc /De/)
Conversion of Shares. Subject to the provisions of this Article ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of First BankWSFS, Malvern Beneficial or their respective shareholdersthe stockholders of any of the foregoing, the shares of Malvern the merged corporations shall be converted as follows:
(a) Each share of capital stock of First Bank WSFS issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective TimeTime and shall not be affected by the Merger.
(b) Each share of Malvern Beneficial Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernBeneficial, any wholly owned Malvern Beneficial Subsidiary, by First Bank WSFS or any First Bank WSFS Subsidiary (in each case other than shares held in any Malvern Employee Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall automatically be treated pursuant canceled and retired and shall cease to Section 2.4exist, and no payment shall be made with respect thereto.
(c) Each share of Malvern Beneficial Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares 0.3013 of a share (the “Exchange Ratio”) of First Bank WSFS Common Stock (the “Stock Consideration”) and (ii) $7.80 2.93 in cash (the “Per Share Cash Consideration,” and and, together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares Each share of Malvern Beneficial Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern Beneficial that immediately prior to the Effective Time represented shares of Malvern Beneficial Common Stock shall cease to have any rights with respect to such Malvern Beneficial Common Stock other than the right to receive the Stock Consideration and Per Share Cash Merger Consideration in accordance with Article ARTICLE 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank WSFS Common Stock into which such shares of Malvern Beneficial Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (WSFS Financial Corp), Merger Agreement (Beneficial Bancorp Inc.)
Conversion of Shares. Subject to the provisions As of this Article 2, at the Effective Time, by virtue of the Merger and without any further action on the part of Veeco, Acquisition, the Company or any holder of any Equity Securities of the Constituent Corporations:
(a) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive 0.43 Veeco Shares (the "MERGER CONSIDERATION"). Accordingly, 0.43 is hereinafter referred to as the "EXCHANGE RATIO."
(b) Each share of common stock, par value $0.01 per share, of Acquisition issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
(c) The Merger Consideration shall be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Veeco Shares or Company Common Stock), reorganization, recapitalization or other like change with respect to Veeco Shares or Company Common Stock occurring after the date of this Merger Agreement and prior to the Effective Time or after the Effective Time if the record date with respect thereto is set after the date of this Merger Agreement and prior to the Effective Time.
(d) No fraction of a Veeco Share will be issued in exchange for surrendered shares of Company Common Stock, but in lieu thereof each holder of shares of Company Common Stock who would otherwise be entitled to a fraction of a Veeco Share (after aggregating all fractional shares of Veeco Shares to be received by such holder) shall receive from Veeco an amount of cash (rounded to the nearest whole cent) equal to the product of (i) such fraction, multiplied by (ii) the Closing Price Per Share.
(e) All Company Common Stock, by virtue of the Merger and without any action on the part of First Bankthe holders thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Company Stock Certificate shall thereafter cease to have any rights with respect to such Malvern the shares of Company Common Stock other than represented thereby, except the right to receive the Merger Consideration for such Company Common Stock Consideration and Per Share Cash Consideration upon the surrender of such Company Stock Certificate in accordance with Article 3, including the right, if any, to receive pursuant to this Section 2.5, cash in lieu of fractional and Section 2.07 hereof.
(f) If any shares of First Bank Company Common Stock into outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or any other Acquired Corporation or under which the Company or any other Acquired Corporation has any rights, then the Veeco Shares issued in exchange for such shares of Malvern Company Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) will also be unvested and subject to Section 3.1(e).
(e) Without limiting the same repurchase option, risk of forfeiture or other provisions of this Agreement condition, and subject the certificates representing such Veeco Shares may accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to Sections 6.2(d) ensure that, from and (e), if at any time during the period between the date of this Agreement and after the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend Veeco is entitled to exercise any such repurchase option or other distribution right set forth in shares of Malvern Common Stock (including any dividend such restricted stock purchase agreement or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeagreement.
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than (i) Shares held in the Company’s treasury, (ii) Shares held by Parent or Acquisition or (iii) the Dissenting Shares (as defined below)) shall, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersAcquisition, the Company or the holder thereof, be converted into and shall become the right to receive a number of fully paid and nonassessable shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior Parent Common Stock equal to the Effective Time shall remain issued and outstanding from and after the Effective Time.
Exchange Ratio (b) Each share together with any cash in lieu of Malvern fractional shares of Parent Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contractedbe paid pursuant to Section 2.10(f)) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided. Unless the context otherwise requires, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All each reference in this Agreement to shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Parent Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than include the right to receive associated Parent Rights (as defined below). Notwithstanding the Stock Consideration and Per Share Cash Consideration in accordance with Article 3foregoing, including the rightif, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Parent Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise Shares shall have been changed into a different number of shares or a different class by reason of any Malvern Stock Options stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares then, the Exchange Ratio shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.
(b) The “Exchange Ratio” shall be 0.6036.
(c) At the Effective Time, each outstanding share of the common stock, $0.01 par value per share, of Acquisition shall be converted into one share of common stock, $0.01 par value per share, of the Surviving Company.
(d) At the Effective Time, each Share held in the treasury of the Company and each Share held by Parent, Acquisition or the Company immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the date hereofpart of Parent, then (without limiting any other rights of First Bank hereunder)Acquisition, the Merger Consideration Company or the holder thereof, be canceled, retired and cease to exist, and no shares of Parent Common Stock shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changedelivered with respect thereto.
Appears in 2 contracts
Samples: Merger Agreement (K2 Inc), Merger Agreement (K2 Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) All of the shares of Common Stock of the Company ("Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than Retained Shares (as defined in subsection (b) below), Acquisition Sub Shares (as defined in subsection (c) below) and Dissenting Shares (as defined in Section 6(h))), shall be automatically converted into the right to receive a cash amount equal to $9.00 per share, without interest thereon (the "Per Share Amount").
(b) 533,378 shares of Common Stock of the Company held by J. Cxxx Xxxdlay (the "Retained Shares") shall be automatically converted into an aggregate of 151,000 shares of Class A Common Stock, 197,420 shares of Class C Common Stock and 44,519.8 shares of Series A Preferred Stock of the Surviving Corporation. The Retained Shares, in the aggregate, at the Effective Time will evidence ownership of the shares of Class A Common Stock, Class C Common Stock and Series A Preferred Stock of the Surviving Corporation into which they are so converted and the certificates representing the Retained Shares shall be exchanged for certificates representing the appropriate number of shares of Class A Common Stock, Class C Common Stock and Series A Preferred Stock of the Surviving Corporation.
(c) all of the issued and outstanding shares of Company Common Stock held by Acquisition Sub ("Acquisition Sub Shares") shall be canceled and shall cease to exist.
(d) Each share of capital stock the 299,000 shares of First Bank Class A Common Stock of Acquisition Sub ("Class A Acquisition Sub Common Stock") issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each be automatically converted into one share of Malvern Class A Common Stock of the Surviving Corporation; each of the 1,202,580 shares of Class B Common Stock of Acquisition Sub ("Class B Acquisition Sub Common Stock") issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each automatically converted into one share of Malvern Class B Common Stock of the Surviving Corporation; and each of the 185,480.2 shares of Series A Preferred Stock of Acquisition Sub (together with Class A Acquisition Sub Common Stock and Class B Acquisition Sub Common Stock, "Acquisition Sub Stock") issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be automatically converted into one share of Series A Preferred Stock of the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) Surviving Corporation. Each certificate evidencing ownership of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Acquisition Sub Stock have been converted together with the amountsshall, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify evidence ownership of the same number of shares of Malvern the Class A Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.,
Appears in 2 contracts
Samples: Merger Agreement (Cic Acquisition Sub Inc), Merger Agreement (Conso International Corp)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First BankSBKC, Malvern Neighbors, or their respective shareholdersthe shareholders of either of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank SBKC issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Subject to the conditions set forth herein, each Neighbors Common Stock issued and Equivalent outstanding immediately prior to the Effective Time that is held by MalvernTime, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans by Neighbors or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result with respect to which the holders thereof have perfected dissenters’ rights under Article 13 of debts previously contracted) the GBCC (collectively, the “Canceled Dissenting Shares”), shall automatically be converted at the Effective Time into the right to receive (i) shall cash in an amount equal to a Pro Rata Share of the Cash Consideration and (ii) a number of shares of SBKC Common Stock equal to a Pro Rata Share of the Stock Consideration. Such Neighbors Common Stock Equivalents to be treated pursuant converted are sometimes referred to Section 2.4herein as the “Outstanding Neighbors Shares.”
(c) If, on any proposed Closing Date agreed to by the Parties,
(i) the average closing price of SBKC Common Stock (adjusted proportionately for any stock split, stock dividend, recapitalization, reclassification, or similar transaction that is effected, or for which a record date occurs) for the 20 preceding trading days prior to the date that is five trading days before the proposed Closing Date as reported in The Wall Street Journal (corrected for any typographical errors) (the “Average Closing Price”) is less than or equal to $18.68; and
(ii) the ratio (the “Index Ratio”) of the Average Closing Price to the weighted average closing price (based on market capitalization) for the banks listed in Appendix 1 for the 20 preceding trading days prior to the date that is five trading days before the proposed Closing Date is less than or equal to 80% of the Index Ratio calculated as of the date of the Agreement using $23.35 as the Average Closing Price, then Neighbors shall have the right to renegotiate the Merger Consideration with SBKC. If the Parties are unable to agree upon the Merger Consideration within 15 business days after such proposed Closing Date, then the Agreement will terminate without penalty to either Party.
(d) Notwithstanding any other provision of this Agreement, each holder of Outstanding Neighbors Shares exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of SBKC Common Stock (after taking into account all certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of SBKC Common Stock multiplied by $23.35. No such holder will be entitled to dividends, voting rights, or any other rights as a shareholder in respect of any fractional shares.
(e) Each share of Malvern Neighbors Common Stock that is not an Outstanding Neighbors Share as of the Effective Time shall be canceled without consideration therefor.
(f) No Dissenting Shares shall be converted in the Merger. All such shares shall be canceled and the holders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the GBCC; provided, however, that if any such shareholder fails to perfect his or her rights as a dissenting shareholder with respect to his or her Dissenting Shares in accordance with Article 13 of the GBCC or withdraws or loses such holder’s Dissenter’s Rights, such shares held by such shareholder shall be treated the same as all other holders of Neighbors Common Stock who at the Effective Time held Outstanding Neighbors Shares.
(g) In the event SBKC or Neighbors changes the number of shares of SBKC Common Stock or Neighbors Common Stock, respectively, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder a result of a certificate (a “Certificate”) stock split, stock dividend or book-entry share (a “Book-Entry Share”) registered in similar recapitalization with respect to such stock and the transfer books of Malvern that immediately record date or effective date thereof is prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Security Bank Corp), Merger Agreement (Neighbors Bancshares Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each each share of capital stock of First Bank Sub issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from become one (1) validly issued, fully paid and after nonassessable share of common stock of the Effective TimeSurviving Corporation.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Company Common StockStock that are owned by the Company as treasury shares and any shares of Company Common Stock owned by Parent, when so converted pursuant to Section 2.1(c) shall no longer Sub or any other direct or indirect Subsidiary of Parent shall, at the Effective Time, be outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(c) At the Effective Time, each holder share of a certificate Company Common Stock then issued and outstanding (a other than Company Common Stock to be cancelled pursuant to Section 4.1(b)) shall be automatically cancelled and shall cease to exist and be converted into the right to receive the Per Share Amount (the “CertificateMerger Consideration”) or book-entry share (a “Book-), and the holders of Book Entry Share”) registered in Shares and the transfer books holders of Malvern that certificates that, immediately prior to the Effective Time Time, represented shares of Malvern outstanding Company Common Stock (the “Certificates”) shall cease to have any rights with respect to such Malvern Common Stock thereto other than the right to receive the Stock Consideration and Per Share Cash Consideration receive, upon transfer of such Book Entry Shares or delivery of such Certificates in accordance with Article 3Section 4.2, including the rightMerger Consideration, if anywithout any interest thereon, to receive pursuant to Section 2.5for each such share of the Company Common Stock.
(d) No fraction of a share of Parent Common Stock will be issued by virtue of the Merger, cash but in lieu thereof each holder of Company Common Stock that would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of First Bank Parent Common Stock into which that otherwise would be received by such shares holder) shall, upon surrender of Malvern Common Stock have been converted together with such holder’s Certificate(s) or Book Entry Share(s) or in the amountscase of a lost, if anystolen or destroyed certificate, payable pursuant to upon delivery of an affidavit in the manner provided in Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e4.2(g), if at any time during receive from Parent an amount of cash (rounded to the period between nearest whole cent), without interest, equal to the date of this Agreement and the Effective Time, Malvern should product of: (i) splitsuch fraction, combine or otherwise reclassify the shares of Malvern Common Stock, multiplied by (ii) make a dividend or other distribution in shares the volume weighted average trading price of Malvern Parent Common Stock on Nasdaq for the five (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii5) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon consecutive trading days ending on the exercise of any Malvern Stock Options outstanding on trading day immediately preceding the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Merger Agreement (Ipass Inc), Merger Agreement (PARETEUM Corp)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersthe holders thereof, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank Flag Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each Except as set forth in Section 3.1(d) below and subject to the conditions set forth herein, each share of Malvern FCB Common Stock issued and outstanding immediately prior to at the Effective Time that is (excluding shares held by Malvern, any wholly owned Malvern Subsidiary, by First Bank Flag or any First Bank Subsidiary (of its Subsidiaries or by FCB or any of its Subsidiaries, in each case other than shares held in any Malvern Benefit Plans or related trust accounts, managed accounts and the like, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to and excluding shares held by FCB shareholders who perfect their dissenters’ rights of appraisal as provided in Section 2.4.
(c) Each share 3.4 of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Sharesthis Agreement) shall be converted at the Effective Time into the right to receive, without interest, (i) 0.7733 receive 1.6 shares of Flag Common Stock for each share of FCB Common Stock (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(dc) All shares As of Malvern the Effective Time, each share of FCB Common Stock, when so converted pursuant to Stock as set forth in Section 2.1(c3.1(b) shall no longer be outstanding and shall automatically be canceled and retired and of this Agreement shall cease to exist, be outstanding and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented representing any such shares of Malvern FCB Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereto, except the right to receive such holder’s pro rata portion of the Stock Merger Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, any cash in lieu of fractional shares of First Bank Flag Common Stock into which to be issued or paid in consideration therefor upon surrender of such certificate in accordance with Section 4.1 of this Agreement, without interest.
(d) In no event shall any holder of Flag Common Stock (other than an Institutional Investor) , be permitted to receive greater than 384,000 shares of Malvern Flag Common Stock have been converted together with as a result of the amountsMerger. Notwithstanding anything to the contrary in this Agreement, if anyto the extent that receipt by any FCB shareholder of his, payable her or its pro rata portion of the shares of Flag Common Stock to be issued pursuant to Section 3.1(d3.1(b) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the would result in such shareholder receiving greater than 384,000 shares of Malvern Flag Common StockStock as a result of the Merger, (ii) make a dividend or other distribution in then the number of shares of Malvern Flag Common Stock to be received by such FCB shareholder shall be reduced by the number of shares necessary (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iiisuch amount being the “Excess Shares”) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional such that the shareholder shall receive no greater than 384,000 shares of Malvern Flag Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise as a result of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration and, in lieu of such Excess Shares, such shareholder shall be equitably and proportionately adjusted, if necessary and without duplication, receive a cash payment equal to reflect fully the effect Average Closing Price times the number of any such changeExcess Shares.
Appears in 2 contracts
Samples: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Flag Financial Corp)
Conversion of Shares. Subject Upon the terms and subject to the provisions of conditions set forth in this Article 2Agreement, at the Effective Time, automatically by virtue of the Merger and without any further action on the part of First Bank, Malvern any party hereto or their respective shareholders, the holder of any shares of Malvern shall be converted as followscapital stock of the Company or Merger Subsidiary:
(a) All Shares owned by the Company as treasury stock and all Shares owned by the Company, Parent, Merger Subsidiary or any of their respective Subsidiaries (other than shares of Company Common Stock held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity, including Shares held by a Company Benefit Plan, that are beneficially owned by third parties (any such Shares, and shares of Parent's common stock which are similarly held, whether held directly or indirectly by the Company or the Parent, being referred to as "Trust Account Shares") and other than any Shares held directly or indirectly by the Company, Parent or any of their respective Subsidiaries in respect of a debt previously contracted (any such Shares, and shares of Parent's common stock which are similarly held, whether held directly or indirectly by the Company or the Parent, being referred to herein as "DPC Shares") immediately prior to the Effective Time shall be canceled and retired and shall cease to exist and no consideration shall be delivered or deliverable in exchange therefor. All shares of Parent's common stock that are owned by the Company (other than Trust Account Shares and DPC Shares) shall become treasury stock of Parent.
(b) Each share of capital common stock of First Bank Merger Subsidiary issued and outstanding immediately prior to the Effective Time shall remain issued become one fully paid and nonassessable share of common stock of the Surviving Corporation and shall constitute the only outstanding from and after shares of capital stock of the Effective TimeSurviving Corporation.
(bc) Each share of Malvern Common Stock Share issued and outstanding immediately prior to the Effective Time that is held by Malvernshall, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (except as otherwise provided in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity Sections 2.1(a) and 2.1(f) or as a result of debts previously contracted) (collectivelyprovided in Section 2.3 with respect to Dissenting Shares, the “Canceled Shares”) shall be treated pursuant and subject to Section 2.4.
(c) Each share 9.1(k), be converted into, at the election of Malvern Common Stock issued the holder as provided in and outstanding immediately prior subject to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivelimitations set forth in this Agreement, without interest, either (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive $9.00 in cash without interest (the "Cash Consideration"), less any required withholding of Taxes or (ii) the number of shares of Parent Common Stock equal to the Exchange Ratio (the "Stock Consideration"). The Cash Consideration and the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including are collectively referred to herein as the right, if any, "Merger Consideration". The "Exchange Ratio" shall be equal to receive pursuant the quotient (rounded to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into the nearest fourth decimal place) obtained by dividing $9.00 by the Average Closing Price on the trading day which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between is three business days preceding the date of this Agreement and on which the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeCompany Stockholders Meeting occurs.
Appears in 2 contracts
Samples: Merger Agreement (Interlott Technologies Inc), Merger Agreement (Gtech Holdings Corp)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern Merger Sub, SpinCo or their respective shareholdersthe holders of SpinCo Common Stock, except as otherwise provided in Section 2.02(b), each share of SpinCo Common Stock (all shares of SpinCo Common Stock being collectively, the shares of Malvern shall be converted as follows:
(a“Shares”) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 receive a number of fully paid and non-assessable shares (the “Exchange Ratio”) of First Bank Parent Common Stock equal to the Exchange Ratio (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided. As of the Effective Time, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All all such shares of Malvern SpinCo Common Stock, when so converted pursuant to Section 2.1(c) Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right to receive the Merger Consideration, any dividends or other distributions pursuant to Section 2.03(c) and cash in lieu of any fractional shares payable pursuant to Section 2.03(e), in each holder case to be issued or paid, without interest. At the latest practicable time prior to the Closing so as to allow the parties to calculate the Exchange Ratio, Parent shall deliver to the Company a certificate, duly executed by an executive officer of a certificate Parent, setting forth the number of Fully Diluted Parent Shares as of the Closing, together with reasonable supporting documentation.
(a “Certificate”b) At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or book-entry the holders of SpinCo Common Stock, each share (a “Book-Entry Share”) registered in the transfer books of Malvern that SpinCo Common Stock held by SpinCo as treasury stock or owned by Parent immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights be canceled, and no payment shall be made with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)thereto.
(ec) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and At the Effective Time, Malvern should (i) splitby virtue of the Merger and without any action on the part of Parent, combine Merger Sub, SpinCo or otherwise reclassify the holders of Merger Sub, each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with the same rights, powers and privileges as the shares of Malvern Common Stock, (ii) make a dividend or other distribution in so converted and shall constitute the only outstanding shares of Malvern Common Stock (including any dividend or other distribution capital stock of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeSurviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Transportation Systems Holdings Inc.), Merger Agreement (Westinghouse Air Brake Technologies Corp)
Conversion of Shares. Subject to (a) At the provisions of this Article 2, at the Reincorporation Effective Time, by virtue of the Reincorporation Merger and without any action on the part of First Bankthe Company, Malvern Company Virginia Sub or their respective shareholdersany holder of common stock, no par value, of the shares of Malvern shall be converted as follows:
Company (athe “Company Common Stock”), (i) Each each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Company Common Stock issued and outstanding immediately prior to the Reincorporation Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”treasury) shall be treated pursuant to Section 2.4.
(c) Each converted into one share of Malvern common stock, no par value per share, of Company Virginia Sub (the “Company Virginia Sub Common Stock”), (ii) each share of Company Common Stock held in the treasury of the Company immediately prior to the Reincorporation Effective Time shall be cancelled and (iii) each share of Company Virginia Sub Common Stock issued and outstanding immediately prior to the Reincorporation Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)cancelled.
(db) All of the shares of Malvern Company Common Stock, when so Stock converted into shares of Company Virginia Sub Common Stock pursuant to Section 2.1(c3.04(a) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existexist as of the Reincorporation Effective Time, and each holder of a certificate previously representing any such shares (a “Company Common Certificate”) or book-entry share (a “Book-Entry Share”) registered in shall thereafter represent, without the transfer books requirement of Malvern any exchange thereof, that immediately prior to the Effective Time represented number of shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Company Virginia Sub Common Stock into which such shares of Malvern Company Common Stock represented by such Company Common Certificate have been converted together with the amounts, if any, payable pursuant to Section 3.1(d3.04(a) and subject to Section 3.1(e(such certificates following the Reincorporation Merger, the “Company Virginia Sub Certificates”).
(ec) Without limiting At the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Reincorporation Effective Time, Malvern should by virtue of the Reincorporation Merger and without any action on the part of the Company, Company Virginia Sub or any holder of Series C Preferred Stock, no par value per share, of the Company (the “Company Series C Stock”), (i) spliteach share of Company Series C Stock issued and outstanding immediately prior to the Reincorporation Effective Time (other than shares held in treasury and shares for which the holder thereof has perfected its dissenter’s rights pursuant to Pennsylvania Law) shall be converted into one share of Series C Preferred Stock, combine or otherwise reclassify no par value per share, of Company Virginia Sub (the “Company Virginia Sub Series C Stock”), and (ii) each share of Company Series C Stock held in the treasury of the Company immediately prior to the Reincorporation Effective Time shall be cancelled.
(d) All of the shares of Malvern Common Stock, (ii) make a dividend or other distribution in Company Series C Stock converted into shares of Malvern Common Company Virginia Sub Series C Stock pursuant to Section 3.04(c) shall no longer be outstanding and shall automatically be canceled and shall cease to exist as of the Reincorporation Effective Time, and each certificate previously representing any such shares (including “Company Series C Certificate”) shall thereafter represent, without the requirement of any dividend or other distribution exchange thereof, that number of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Company Virginia Sub Series C Stock or any Equity Right for Malvern Common Stock, other than upon the exercise into which such shares of any Malvern Company Series C Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunderrepresented by such Company Series C Certificate have been converted pursuant to Section 3.04(c), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 2 contracts
Samples: Transaction Agreement (Sovereign Bancorp Inc), Transaction Agreement (Banco Santander, S.A.)
Conversion of Shares. Subject to The manner and basis of converting the provisions shares of this Article 2, at stock of each of the Constituent Corporations will be as follows:
(a) At the Effective Time, each share of Common Stock, par value $.01 per share, of Company ("COMPANY COMMON STOCK"), which is issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares (as defined in Section 2.6(a)), and (ii) shares of Company Common Stock held of record by Parent or Purchaser or any other direct or indirect wholly-owned subsidiary of Parent or Company immediately prior to the Effective Time) will, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into and represent the right to receivereceive (as provided in Section 2.8) the Per Share Amount in cash (the "MERGER CONSIDERATION"), without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the rightprorated for fractional shares, if any, to receive . Any payment made pursuant to this Section 2.5, cash in lieu 2.5(a) and Section 2.8 will be made net of fractional shares of First Bank Common Stock into which applicable withholding taxes to the extent such shares of Malvern Common Stock have been converted together with withholding is required by law. Notwithstanding the amountsforegoing, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)Shares, the Merger Consideration will be correspondingly adjusted on a per share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.
(b) At the Effective Time, each share of Common Stock, par value $.0001 per share, of Purchaser ("PURCHASER COMMON STOCK"), which is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into and exchanged for one fully paid and nonassessable share of common stock of the Surviving Corporation ("SURVIVING CORPORATION COMMON STOCK"), which will constitute the only issued and outstanding shares of capital stock of the Surviving Corporation immediately after the Effective Time. From and after the Effective Time, each outstanding certificate theretofore representing shares of Purchaser Common Stock will be deemed for all purposes to evidence ownership and to represent the same number of shares of Surviving Corporation Common Stock.
(c) At the Effective Time, each share of Company Common Stock held of record by Parent or Purchaser or any other direct or indirect wholly-owned subsidiary of Parent or Company immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled and cease to exist, and no payment shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changemade with respect thereto.
Appears in 2 contracts
Samples: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
Conversion of Shares. Subject to the provisions of this Article 23, -------------------- at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersthe holders thereof, the shares of Malvern PURCHASER and TARGET shall be converted as follows:
(a) Each share of capital stock of First Bank PURCHASER Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to Outstanding TARGET Share shall automatically be converted at the Effective Time into the right to receive that is held by Malvernnumber of shares of PURCHASER Common Stock (plus cash in lieu of fractional shares pursuant to subsection (d) below, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary if applicable) in an amount equal to (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contractedi) 500,000 (collectively, the “Canceled Shares”) shall be treated subject to possible increase pursuant to Section 2.43.3 and 3.7 of this Agreement) divided ------- by (ii) the aggregate number of Outstanding TARGET Shares (the "Exchange -- Ratio").
(c) Each share In accordance with the provisions of Malvern this Section 3.1, each TARGET shareholder who does not dissent shall receive the number of shares (or such fraction of a share, subject to subsection (d) below) of PURCHASER Common Stock issued and outstanding immediately prior that shall be equal to (i) the Exchange Ratio multiplied by (ii) the ---------- -- aggregate number of Outstanding TARGET Shares such shareholder holds as of the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “"Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f").
(d) All shares Notwithstanding any other provision of Malvern Common Stockthis Agreement, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books shares of Malvern that immediately prior TARGET Common Stock exchanged pursuant to the Effective Time represented shares Merger who would otherwise have been entitled to receive a fraction of Malvern a share of PURCHASER Common Stock (after taking into account all certificates delivered by such holder) shall cease to have any rights with respect receive, in lieu thereof, cash (without interest) in an amount equal to such Malvern fractional part of a share of PURCHASER Common Stock multiplied by the Base Period Trading Price. No such holder will be entitled to dividends, voting rights, or any other than the right to receive the Stock Consideration and Per Share Cash Consideration rights as a shareholder in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu respect of any fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)shares.
(e) Without limiting Each share of the other provisions TARGET Common Stock that is not an Outstanding TARGET Share as of this Agreement and subject the Effective Time shall be cancelled without consideration therefor.
(f) Outstanding TARGET Shares held by TARGET shareholders who, prior to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) splithave met the requirements of Article 13 of the GBCC with respect to shareholders dissenting from the Merger shall not be converted in the Merger. All such shares shall be cancelled and the holders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the GBCC; provided, combine however, that if any such shareholder fails to perfect his or otherwise reclassify her rights as a dissenting shareholder with respect to his or her Outstanding TARGET Shares in accordance with Article 13 of the GBCC, such shares held by such shareholder shall, upon the happening of Malvern Common Stockthat event, (ii) make a dividend or be treated the same as all other distribution in shares holders of Malvern TARGET Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon who have not dissented as to the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeMerger.
Appears in 2 contracts
Samples: Merger Agreement (Abc Bancorp), Merger Agreement (Abc Bancorp)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankUBSH, Malvern XBKS or their respective shareholders, any holder of any of the shares of Malvern shall be converted as followsfollowing securities:
(a) Each share of capital stock common stock, par value $1.33 per share, of First Bank UBSH (“UBSH Common Stock”) issued and outstanding immediately prior to the Effective Time shall remain an issued and outstanding from share of common stock of the Continuing Corporation and after shall not be affected by the Effective TimeMerger.
(b) Each share All shares of Malvern common stock, par value $0.01 per share, of XBKS (“XBKS Common Stock Stock”) issued and outstanding immediately prior to the Effective Time that is held by Malvernare owned, any wholly owned Malvern Subsidiarydirectly or indirectly, by First Bank UBSH or any First Bank Subsidiary XBKS (in each case other than shares of XBKS Common Stock held in any Malvern Benefit Plans or related trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contractedcapacity, that are beneficially owned by third parties) (collectivelyany such shares, the “Canceled XBKS Cancelled Shares”) shall no longer be treated pursuant outstanding, shall automatically be cancelled and shall cease to Section 2.4exist and no consideration shall be delivered in exchange therefor.
(c) Each share of Malvern XBKS Common Stock Stock, except for XBKS Cancelled Shares, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall will cease to be outstanding and will be converted automatically into and exchanged for the right to receive, without interest, (i) 0.7733 receive 0.9354 shares (the “Exchange Ratio”) of First Bank validly issued, fully paid and nonassessable shares of common stock, par value $1.33 per share, of the Continuing Corporation (“Continuing Corporation Common Stock”) (with respect to a given share of XBKS Common Stock, together with any cash in lieu of fractional shares of Continuing Corporation Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationto be paid pursuant to Section 2.6, the “Merger Consideration”); providedit being understood that upon the Effective Time, howeverpursuant to Section 2.1(a), UBSH Common Stock, including the Merger Consideration may shares issued to former holders of XBKS Common Stock, shall be reduced as provided by Section 8.2(f)the Continuing Corporation Common Stock.
(d) All shares of Malvern Common StockIf, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement hereof and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern UBSH Common Stock or any Equity Right XBKS Common Stock shall have been increased, decreased, changed into or exchanged for Malvern Common Stocka different number or kind of shares or securities as a result of a reorganization, other than upon stock dividend, stock split, reverse stock split or similar change in capitalization, appropriate and proportionate adjustments shall be made to the exercise of any Malvern Stock Options outstanding on the date hereofExchange Ratio, then (without limiting and any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, amounts payable pursuant to reflect fully the effect of any such changethis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Union Bankshares Corp), Merger Agreement (Xenith Bankshares, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder of Malvern shall be converted as followsthe Company or Parent:
(ai) Each share all shares of capital Company Capital Stock held as treasury stock by the Company or held or owned by Parent or Merger Sub or any Subsidiary of First Bank issued and outstanding Parent immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5(c), each holder share of a certificate Series A Preferred Stock (a “Certificate”excluding shares to be canceled pursuant to Section 1.5(a)(i) or book-entry share (a “Book-Entry Share”and excluding Dissenting Shares) registered in the transfer books of Malvern that outstanding immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Company Series A Exchange Ratio;
(iii) subject to Section 1.5(c), each share of Series A-1 Preferred Stock Consideration (excluding shares to be canceled pursuant to Section 1.5(a)(i) and Per Share Cash Consideration excluding Dissenting Shares) outstanding immediately prior to the Effective Time shall be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Company Series A-1 Exchange Ratio;
(iv) subject to Section 1.5(c), each share of Series A-2 Preferred Stock (excluding shares to be canceled pursuant to Section 1.5(a)(i) and excluding Dissenting Shares) outstanding immediately prior to the Effective Time shall be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Company Series A-2 Exchange Ratio;
(v) subject to Section 1.5(c), each share of Company Common Stock (excluding shares to be canceled pursuant to Section 1.5(a)(i) and excluding Dissenting Shares) outstanding immediately prior to the Effective Time shall be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Company Common Stock Exchange Ratio.
(b) If any shares of Company Capital Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Capital Stock at the Effective Time will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and such shares of Parent Common Stock shall accordingly be marked with appropriate legends. The Company shall take all actions that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement in accordance with Article 3its terms.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, including the right, if any, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Capital Stock who would otherwise be entitled to receive pursuant a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to Section 2.5such holder) shall, cash in lieu of fractional shares such fraction of First Bank a share and upon surrender by such holder of a letter of transmittal in accordance with Section 1.6 and any accompanying documents as required therein, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock into on the Nasdaq Capital Market (or such other Nasdaq market on which such shares of Malvern the Parent Common Stock have been converted together then trades) on the date the Merger becomes effective.
(d) All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e5.5(a).
(e) Without limiting Each share of common stock, $0.0001 par value per share, of Merger Sub issued and outstanding immediately prior to the other provisions Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of this Agreement and subject to Sections 6.2(dcommon stock, $0.0001 par value per share, of the Surviving Corporation. Each stock certificate or book-entry share of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.
(f) and (e)If, if at any time during the period between the date time of this Agreement calculating the Exchange Ratio and the Effective Time, Malvern should (i) the outstanding shares of Company Capital Stock or Parent Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange of shares or other like change, or (iv) issue additional shares the Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Malvern Company Capital Stock, Parent Common Stock and Company Options with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the Company or Parent to take any Equity Right for Malvern action with respect to Company Capital Stock or Parent Common Stock, other than upon respectively, that is prohibited or not expressly permitted by the exercise terms of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changethis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankRaptor, Malvern TPT, Merger Sub or their respective shareholdersany stockholder of Raptor, the shares of Malvern shall be converted as followsTPT or Merger Sub:
(ai) Each each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Raptor Common Stock issued and outstanding immediately prior to the Effective Time that is then held by Malvern, Raptor or any wholly owned Malvern Subsidiary, by First Bank Subsidiary of Raptor (or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”Raptor’s treasury) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) each holder share of a certificate Raptor Common Stock then held by TPT, Merger Sub or any wholly-owned Subsidiary of TPT shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(a “Certificate”iii) or book-entry subject to Sections 1.5(b) and 1.5(c), each share (a “Book-Entry Share”) registered in the transfer books of Malvern that Raptor Common Stock outstanding immediately prior to the Effective Time represented (excluding shares of Malvern Common Stock to be cancelled pursuant to Sections 1.5(a)(i) and 1.5(a)(ii) and excluding Dissenting Shares) shall cease to have any rights with respect to such Malvern Common Stock other than be converted solely into the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank TPT Common Stock equal to the Exchange Ratio; and
(iv) each share of the common stock, $0.0001 par value per share, of Merger Sub then outstanding shall be converted into which such shares one share of Malvern Common Stock have been converted together with common stock of the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Surviving Corporation.
(eb) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding shares of TPT Common Stock or Raptor Common Stock are changed into a different number or class of shares by reason of any stock split, combine stock dividend, reverse stock split (including, without limitation, the Reverse Stock Split), reclassification, recapitalization or other similar transaction or event, then the Exchange Ratio and the inputs thereto shall be appropriately adjusted to provide the holders of Raptor Common Stock, Raptor Stock Options and Raptor Warrants and TPT Common Stock, TPT Restricted Stock Units, TPT Stock Options and TPT Warrants the same economic effect as contemplated by this Agreement prior to such event. No fractional shares of TPT Common Stock shall be issued in connection with the Reverse Stock Split, and no certificates or scrip for any such fractional shares shall be issued. Any holder of TPT Common Stock who would otherwise reclassify be entitled to receive a fraction of a share of TPT Common Stock (after aggregating all fractional shares of TPT Common Stock LEGAL_US_W # 62319343.5 -3- issuable to such holder) shall, in lieu of such fraction of a share and upon surrender of such holder’s certificate representing such fractional shares of TPT Common Stock, be paid in cash the dollar amount (provided to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of TPT Common Stock on the NASDAQ Global Market or the NASDAQ Capital Market, as applicable, on the date immediately preceding the effective date of the Reverse Stock Split.
(c) No fractional shares of TPT Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Raptor Common Stock who would otherwise be entitled to receive a fraction of a share of TPT Common Stock (after aggregating all fractional shares of TPT Common Stock issuable to such holder) shall, in lieu of such fraction of a share and, upon surrender of such holder’s Raptor Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of TPT Common Stock on the NASDAQ Global Market or the NASDAQ Capital Market, as applicable, on the Closing Date.
(d) If any shares of Raptor Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with Raptor, then the shares of Malvern TPT Common StockStock issued in exchange for such shares of Raptor Common Stock will also be unvested and subject to the same repurchase option, (ii) make a dividend risk of forfeiture or other distribution in condition, and the certificates representing such shares of Malvern TPT Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall accordingly be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changemarked with appropriate legends.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder of Malvern shall be converted as followsthe Company or Parent:
(ai) Each share any shares of capital Company Capital Stock held as treasury stock of First Bank issued and outstanding or held or owned by the Company or Merger Sub immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5(c), each holder share of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Capital Stock outstanding immediately prior to the Effective Time represented (excluding shares of Malvern Common Stock to be canceled pursuant to Section 1.5(a)(i) and excluding Dissenting Shares) shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the Exchange Ratio (the “Merger Consideration”).
(b) If any shares of Company Capital Stock Consideration outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Capital Stock will to the same extent be unvested and Per Share Cash Consideration subject to the same repurchase option or risk of forfeiture, and such shares of Parent Common Stock shall accordingly be marked with appropriate legends. The Company shall take all actions that may be necessary to ensure that, from and after the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement in accordance with Article 3its terms.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, including the right, if any, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Capital Stock who would otherwise be entitled to receive pursuant a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to Section 2.5such holder) shall, cash in lieu of fractional such fraction of a share and upon surrender by such holder of a letter of transmittal in accordance with Section 1.7 and any accompanying documents as required therein, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the Parent Closing Price.
(d) All Company Options outstanding immediately prior to the Effective Time shall be treated in accordance with Section 5.5.
(e) All Company Warrants outstanding immediately prior to the Effective Time that are not exercised prior to the Effective Time shall be assumed by Parent; provided, however, that from and after the Effective Time, (i) such Company Warrants shall be exercisable into that number of shares of First Bank Parent Common Stock equal to (A) the Exchange Ratio multiplied by (B) the number of shares of Company Common Stock into which such shares Company Warrant is exercisable as of Malvern immediately prior to the Effective Time, (ii) the per share exercise price for the Parent Common Stock have been converted together with issuable upon exercise of each Company Warrant assumed by Parent shall be determined by dividing (A) the amounts, if any, payable pursuant to Section 3.1(d) and per share exercise price of Company Common Stock subject to Section 3.1(e)such Company Warrant, as in effect immediately prior to the Effective Time, by (B) the Exchange Ratio and rounding the resulting exercise price up to the nearest whole cent and (iii) except as otherwise provided in such Company Warrant, the term, exercisability, vesting schedule and other provisions of such Company Warrant shall otherwise remain unchanged.
(ef) Without limiting Each share of common stock, $0.0001 par value per share, of Merger Sub issued and outstanding immediately prior to the other provisions Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of this Agreement and subject to Sections 6.2(dcommon stock, $0.0001 par value per share, of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.
(g) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the outstanding shares of Malvern Common Stock, (ii) make a dividend Company Capital Stock or other distribution in shares of Malvern Parent Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split (including any dividend or other distribution of securities convertible into Malvern Common Stockthe Reverse Split), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange of shares or other like change, or (iv) issue additional shares the Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Malvern Company Capital Stock and Parent Common Stock with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the Company or Parent to take any Equity Right for Malvern action with respect to Company Capital Stock or Parent Common Stock, other than upon respectively, that is prohibited or not expressly permitted by the exercise terms of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changethis Agreement.
Appears in 1 contract
Conversion of Shares. (a) Subject to the provisions of this Article 2Sections 1.5, 1.8 and 1.9, at the Effective TimeClosing Date, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any shareholder of Malvern shall be converted as follows:
(a) Each the Company, each share of capital stock of First Bank issued and Company Common Stock outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) Closing Date shall be converted into the right to receive, without interest, receive the following (the "Merger Consideration") as the total consideration for the Merger:
(i) 0.7733 shares at the Closing Date, (x) the “Exchange Ratio”difference calculated by subtracting the Closing Deductions from the Merger Price divided by (y) of First Bank Common Stock (two times the “Stock Consideration”) and Adjusted Fully Diluted Company Share Amount; and
(ii) $7.80 on the one year anniversary of the Closing Date, the Merger Price divided by two times the Adjusted Fully Diluted Company Share Amount.
(b) The Merger Consideration shall be payable in shares of common stock (no par value) of Parent ("Parent Common Stock"), or a combination of shares of Parent Common Stock and cash (as determined by the “Per Share Cash Consideration,” and together with the Stock ConsiderationParent in its sole discretion), the “Merger Consideration”); provided, however, that in no event shall the Merger Consideration may be reduced comprised of fifty percent (50%) or more cash.
(c) The number of shares of Parent Common Stock comprising any portion of the Merger Consideration payable on:
(i) the Closing Date, shall be calculated by dividing such portion of the Merger Consideration by the Closing Designated Parent Stock Price, and rounding such quotient to the nearest whole number; and
(ii) the one year anniversary of the Closing Date, shall be calculated by dividing such portion of the Merger Consideration by the Designated Parent Stock Price as provided by Section 8.2(f)of the one year anniversary of the Closing, and rounding such quotient to the nearest whole number.
(d) All For the purposes of this Agreement:
(i) the "Adjusted Fully Diluted Company Share Amount" shall be the sum of (A) the aggregate number of shares of Malvern Company Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be Stock outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock Closing Date (including any dividend such shares that are subject to a repurchase option or risk of forfeiture under any restricted stock purchase agreement or other distribution agreement); and (B) the aggregate number of securities convertible into Malvern shares of Company Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange Stock purchasable under any options or other like changerights to acquire stock in the capital of the Company, or outstanding immediately prior to the Closing Date, but excluding all rights to acquire stock under a SAR (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunderas such term is defined in Section 1.6.), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Conversion of Shares. (a) Subject to the provisions terms and conditions of this Article 2Agreement, at the Effective TimeTime of Merger I, by virtue of the Merger I and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Subs, the shares Company or any stockholder of Malvern shall be converted as followsthe Company:
(ai) Each share any shares of capital stock Company Common Stock held by the Company or any wholly-owned Subsidiary of First Bank issued and outstanding the Company (or held in the Company’s treasury) immediately prior to the Effective Time of Merger I shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder no consideration shall be delivered in exchange therefor;
(ii) any shares of a certificate (a “Certificate”) Company Common Stock held by Parent, Merger Sub I, Merger Sub II or bookany other wholly-entry share (a “Book-Entry Share”) registered in the transfer books owned Subsidiary of Malvern that Parent immediately prior to the Effective Time represented shares of Malvern Common Stock Merger I shall be canceled and retired and shall cease to have any rights with respect exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses (i) and (ii) above and subject to such Malvern Sections 1.5(b), 1.5(d) and 1.5(e), (A) each share of Company Common Stock other than outstanding immediately prior to the Effective Time of Merger I shall be converted into the right to receive a fraction of a share of Parent Common Stock equal to the Common Stock Consideration Exchange Ratio, and Per Share Cash Consideration a right to receive a portion of the Balance Shares pursuant to Section 1.11 below, (B) each share of the Company’s Series A Preferred Stock outstanding immediately prior to the Effective Time of Merger I shall be converted into the right to receive such number of shares of Parent Common Stock as is equal to the Series A Preferred Stock Exchange Ratio, and a right to receive a portion of the Balance Shares pursuant to Section 1.11 below, and (C) each share of the Company’s Series B Preferred Stock outstanding immediately prior to the Effective Time of Merger I shall be converted into the right to receive such number of shares of Parent Common Stock as is equal to the Series B Preferred Stock Exchange Ratio, and a right to receive a portion of the Balance Shares pursuant to Section 1.11 below; and
(iv) each share of the Common Stock, $0.01 par value per share, of Merger Sub I outstanding immediately prior to the Effective Time of Merger I shall be converted into one share of common stock of Surviving Entity I. Each stock certificate of Merger Sub I evidencing ownership of any such shares shall, as of the Effective Time of Merger I, evidence ownership of such shares of Common Stock of Surviving Entity I. The fraction of a share or number of shares of Parent Common Stock specified in clause (iii) of the preceding sentence (as such may be adjusted in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(dSections 1.5(b) and subject 1.5(c)) is referred to Section 3.1(e)as the “Exchange Ratio.”
(eb) Without limiting the other provisions of this Agreement and subject to Sections 6.2(dIN NO EVENT WILL PARENT ISSUE IN EXCESS OF AN AGGREGATE OF TWO MILLION (2,000,000) and SHARES OF PARENT COMMON STOCK (eTHE “MAXIMUM TRANSACTION SHARES”) IN CONNECTION WITH THE TRANSACTION, INCLUDING SHARES ISSUABLE WITH RESPECT TO SHARES OF COMPANY COMMON STOCK AND COMPANY PREFERRED STOCK PURSUANT TO SECTION 1.5(a)(iii) AND SECTION 1.11 AND UPON THE EXERCISE OF COMPANY OPTIONS (AS DEFINED IN SECTION 2.3(b), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern or their respective shareholdersPurchaser, Merger Sub, the shares Company or the holders of Malvern shall be converted as followsany of the following securities:
(a) Each except for Disregarded Shares and Dissenting Shares, each share of capital stock of First Bank Series B Preferred Stock issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from shall become the right to receive (i) the Series B Original Issue Price (as defined in the Certificate of Incorporation) plus an amount equal to all cumulative dividends accrued and after unpaid (including all Accruing Dividends (as defined in the Effective Time.
(bCertificate of Incorporation) Each then accrued) on such share of Malvern Common Series B Preferred Stock issued plus all other declared and outstanding immediately prior unpaid dividends on such shares (with respect to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result share of debts previously contracted) (collectivelySeries B Preferred Stock, the “Canceled SharesPer Share Series B Liquidation Preference”) , and with respect to all shares of Series B Preferred Stock, the “Aggregate Series B Liquidation Preference”); provided that the Aggregate Series B Liquidation Preference shall in no event exceed the Maximum Series B Liquidation Preference, and the Per Share Series B Liquidation Preference shall be treated pursuant proportionately reduced as necessary to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior give effect to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivesame, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (a portion of the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Common Merger Consideration may be reduced as provided by in Section 8.2(f2.04(c).
(d) All , and as of the Effective Time, all such shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) Series B Preferred Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existexist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Series B Preferred Stock in accordance with this Agreement;
(b) except for Disregarded Shares and Dissenting Shares, each share of Series A Preferred Stock issued and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that outstanding immediately prior to the Effective Time represented shall be converted into and shall become the right to receive (i) the Series A Original Issue Price (as defined in the Certificate of Incorporation) plus an amount equal to all cumulative dividends accrued and unpaid (including all Accruing Dividends (as defined in the Certificate of Incorporation) then accrued) on such share of Series A Preferred Stock plus all other declared and unpaid dividends on such shares (with respect to each share of Series A Preferred Stock, the “Per Share Series A Liquidation Preference”, and with respect to all shares of Malvern Series A Preferred Stock, the “Aggregate Series A Liquidation Preference”); provided that the Aggregate Series A Liquidation Preference shall in no event exceed the Maximum Series A Liquidation Preference, and the Per Share Series A Liquidation Preference shall be proportionately reduced as necessary to give effect to the same, and (ii) a portion of the Common Merger Consideration as provided in Section 2.04(c), and as of the Effective Time, all such shares of Series A Preferred Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to have any rights with respect to such Malvern Common Stock other than exist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Series A Preferred Stock Consideration and Per Share Cash Consideration in accordance with Article 3this Agreement;
(c) except for Disregarded Shares and Dissenting Shares, including each share of Company Stock issued and outstanding immediately prior to the right, if any, Effective Time shall be converted into and shall become the right to receive pursuant to Section 2.5(i) the Per Share Closing Cash Consideration, cash in lieu (ii) the Per Share Adjustment Consideration, (iii) the Per Share Escrow Release Amount, (iv) Per Share Equityholders’ Representative Fund Release Amount and (v) the Per Share Earn-Out Payments (collectively for all Company Stock other than Disregarded Shares and Dissenting Shares, the “Common Merger Consideration”), and as of fractional shares of First Bank Common Stock into which the Effective Time, all such shares of Malvern Common Company Stock have been converted together shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Company Stock in accordance with this Agreement;
(d) each share of Company Stock held by the amountsCompany (including as treasury stock) (collectively, if anythe “Disregarded Shares”) immediately prior to the Effective Time shall be canceled without any conversion thereof and shall cease to exist, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).no consideration shall be delivered or receivable with respect thereto;
(e) Without limiting each share of capital stock of Merger Sub issued and outstanding immediately prior to the other provisions Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of this Agreement common stock of the Surviving Corporation, with the same rights, powers and subject privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and
(f) notwithstanding the foregoing, (i) in lieu of a portion of the Merger Consideration that would otherwise have been payable in cash at the Closing to Sections 6.2(dthe Payments Administrator, for the benefit of the Equityholders listed on Schedule II, Parent shall deliver to each Equityholder listed on Schedule II the number of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II as provided in Section 2.06(c) and (e)ii) the amount of the Merger Consideration that would otherwise have been payable in cash at the Closing to the Payments Administrator, if at any time during for the period between benefit of the date Equityholders listed on Schedule II, shall be reduced by an amount equal to the Market Price multiplied by the Closing Stock Consideration to which each such Equityholder is entitled.
(g) At least 15 Business Days prior to the Closing Date, the Company shall deliver to Parent and Purchaser an updated version of this Agreement and Schedule II reflecting only the Effective Timenumber of shares of Parent Common Stock to be issued to each Equityholder listed therein, Malvern should which updated version of Schedule II shall provide for Parent Common Stock with a Market Price of $50,000,000 to be issued to one or more Equityholders who (i) split, combine have current W-2s on file with the Company evidencing that such Equityholders are “accredited investors” as that term is defined in Rule 501 of Regulation D of the Securities Act or otherwise reclassify the shares of Malvern Common Stock, deliver evidence reasonably satisfactory to Parent that such Equityholders are “accredited investors” (including a letter from each such Equityholder’s independent certified public accountant certifying that such Equityholder is an “accredited investor”) and (ii) make have delivered to Parent a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably Written Consent and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any Support Agreement duly executed by each such changeEquityholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Communications Sales & Leasing, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at the Effective Time, by (a) By virtue of the Merger Amalgamation and without any action on the part of First BankPurchaser, Malvern or their respective shareholdersAmalgamation Sub, the shares Company, the Operating Company, the Holders or any other holder of Malvern shall be converted as followsany interests in Amalgamation Sub, at the Effective Time:
(ai) Each share of capital stock of First Bank each membership unit in Amalgamation Sub issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from and after become 200,000 common shares of the Effective Time.Amalgamated Company; and
(bii) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock Share issued and outstanding immediately prior to the Effective Time (excluding except those Shares subject to the Canceled Sharesrights of Dissenting Shareholders) shall be converted into and become the right to receivereceive that number of shares of Purchaser Common Stock (the “Amalgamation Consideration”) equal to the amount determined by dividing (A) 1,500,000 shares of Purchaser Common Stock (the “Closing Amalgamation Shares”) by (B) the total number of Shares outstanding immediately prior to the Effective Time (including for this purpose any shares of the Company issuable under the Warrants (to the extent not exercised on or prior to the Effective Time) and other convertible securities outstanding immediately prior to the Effective Time but not including any other outstanding Company Options) (the “Total Outstanding Share Number”), without interest, and carrying the quotient thereof out to six (i6) 0.7733 shares decimal places (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(db) All shares The Closing Amalgamation Shares shall be appropriately adjusted to fully reflect the effect of Malvern Common Stockany stock dividend, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existstock split, and each holder reclassification, combination, exchange of a certificate (a “Certificate”) shares, or book-entry share (a “Book-Entry Share”) registered similar change in the transfer books capitalization of Malvern that immediately Purchaser after the date hereof but prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Time.
(ec) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the Holders shall receive only whole shares of Malvern Purchaser Common Stock. In lieu of any fractional share of Purchaser Common Stock, (ii) make a dividend or other distribution in the number of shares of Malvern Purchaser Common Stock (including to be issued to any dividend or other distribution Holder shall be rounded down to the prior whole number of securities convertible into Malvern shares of Purchaser Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Agreement and Plan of Amalgamation (Palmsource Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bankany Party or Securityholder, Malvern or their respective shareholders, immediately prior to the shares of Malvern shall be converted Effective Time as follows:set forth in Section 4.1(g):
(a) Each share of capital stock common stock, par value $0.01 per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued outstanding and outstanding from and shall represent one share of common stock, par value $0.01 per share, of the Surviving Corporation, so that, after the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation’s capital stock.
(b) Each Subject to the provisions of Article V, each share of Malvern Common Stock (excluding the Restricted Shares, which shall be governed by Section 4.1(c) below) that is issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant converted into the right to receive an amount in cash equal to the Common Share Price; provided, however, that Dissenting Shares shall not be so converted or represent the right to receive the foregoing consideration, but the holders of such Dissenting Shares shall only be entitled to such rights as are set forth in Section 2.45.5.
(c) Each share Subject to the provisions of Malvern Common Stock Article V, each Restricted Share that is issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be fully vested and each such Restricted Share shall be cancelled and extinguished and, in consideration therefor, the holder thereof shall be entitled to receive an amount in cash equal to the Common Share Price, less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations, if any; provided, however, that Dissenting Shares shall not be so converted or represent the right to receive the foregoing consideration, but the holders of such Dissenting Shares shall only be entitled to such rights as are set forth in Section 5.5.
(d) Subject to the provisions of Article V, each Company Restricted Share Unit that is outstanding immediately prior to the Effective Time shall become vested or earned and be cancelled subject to and immediately following the Effective Time and converted into the right to receivereceive an amount in cash equal to the Common Share Price, less applicable federal, state and local income Tax withholding and Social Security, Medicare, state disability, unemployment and other withholding obligations.
(e) Each share of Common Stock that is issued and held in the Company’s treasury or by any of the Company’s Subsidiaries immediately prior to the Effective Time shall be cancelled and retired without interestany conversion thereof and no payment or distribution shall be made in respect thereof.
(f) Upon conversion or cancellation thereof as described in this Section 4.1, (i) 0.7733 shares (the “Exchange Ratio”) each share of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(cincluding each Restricted Share) shall no longer be outstanding cease to exist and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern representing such Common Stock or Restricted Shares shall cease to have any rights with respect to such Malvern Common Stock thereto other than the right (which right is expressly subject to the other terms and provisions of this Agreement, including Sections 11.2 and 11.3) to receive the Stock Consideration payments described in this Agreement without interest except as set forth in this Agreement. Upon cancellation thereof as described in this Section 4.1, each Company Restricted Share Unit shall cease to exist and Per shall automatically be canceled and each holder of a Company Restricted Share Cash Consideration in accordance Unit shall cease to have any rights with Article 3respect thereto other than the right (which right is expressly subject to the other terms and provisions of this Agreement, including the right, if any, Sections 11.2 and 11.3) to receive pursuant to Section 2.5, cash the payments described in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)this Agreement without interest except as set forth in this Agreement.
(eg) Without limiting For the other provisions avoidance of this Agreement doubt, (i) all of the issued and subject outstanding Class B Common Stock and all of the shares of Class C Common Stock held by Sempra shall be repurchased by the Company in full immediately prior to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) splitpursuant to the Sempra Termination Agreement and, combine or otherwise reclassify the thereafter, such Class B Common Stock and such shares of Malvern Class C Common StockStock shall be treated as treasury shares and shall be cancelled and retired in accordance with Section 4.1(e), (ii) make a dividend or other distribution in shares all of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock)the Company Restricted Share Units held by Sempra shall be cancelled immediately prior to the Effective Time, and (iii) engage in except for purposes of determining whether the Stockholder Consent has been obtained, Sempra shall not be considered a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares Securityholder for purposes of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon this Agreement from and after the exercise time of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably such repurchase and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changecancellation.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersMerger Sub, the shares Company or the holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock of First Bank Share issued and outstanding immediately before the Effective Time (other than any Shares to be cancelled pursuant to Section 1.3(b) hereof and any Dissenting Shares (as hereinafter defined)) shall be cancelled and extinguished and be converted into the right to receive the Per Share Amount (the “Merger Consideration”) in cash payable to the holder thereof, without interest, promptly upon surrender of the certificate representing such Share or appropriate proof of lost certificates, in accordance with Section 1.5 hereof. From and after the Effective Time, the holders of certificates evidencing ownership of any such Shares outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Shares except as otherwise provided for herein or by applicable Law.
(eb) Without limiting Each Share held in the treasury of the Company and each Share owned by Parent or any direct or indirect wholly owned Subsidiary of Parent (other provisions than Shares held by TRW Investment Management Co., its advisors or employee benefit plans of this Agreement and subject to Sections 6.2(dParent or any of its Subsidiaries) and (e), if at any time during the period between the date of this Agreement and immediately before the Effective Time, Malvern should including without limitation Merger Sub, shall be cancelled and extinguished and no payment or other consideration shall be made with respect thereto. Each share of the Series A Convertible Preferred Stock owned by Parent or any direct or indirect wholly owned subsidiary of Parent immediately before the Effective Time, including without limitation Merger Sub, shall be cancelled and extinguished and no payment or other consideration shall be made with respect thereto.
(ic) split, combine or otherwise reclassify the The shares of Malvern Merger Sub common stock outstanding immediately prior to the Merger shall be converted into 8,000 validly issued, fully paid and non-assessable shares of common stock of the Surviving Corporation, or such other number of such Shares as Parent may determine with notice to the Company prior to the Effective Time (the “Surviving Corporation Common Stock”), which 8,000 shares (iior such other number of shares) make a dividend or other distribution in shares of Malvern the Surviving Corporation Common Stock (including any dividend or other distribution shall constitute all of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares the issued and outstanding capital stock of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration Surviving Corporation and shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeowned by Parent.
Appears in 1 contract
Samples: Merger Agreement (TRW Inc)
Conversion of Shares. Subject to At the provisions of this Article 2, at the Merger Effective TimeDate, by virtue of the Merger and without any action on the part of First Bank, Malvern Greensburg Bancshares or their respective shareholders, the holders of shares of Malvern Greensburg Bancshares Common Stock the Merger shall be converted as followseffected in accordance with the following terms:
(a) Each share of capital stock of First Bank Guaranty Bancshares Common Stock that is issued and outstanding immediately prior to the Merger Effective Time Date shall remain issued and outstanding from following the Merger Effective Date and after shall be unchanged by the Effective TimeMerger.
(b) Each All shares of Greensburg Bancshares Common Stock held in the treasury of Greensburg Bancshares (“Treasury Stock”) and each share of Malvern Greensburg Bancshares Common Stock owned by First Guaranty Bancshares immediately prior to the Merger Effective Date (other than shares held in a fiduciary capacity or in connection with debts previously contracted) shall, at the Merger Effective Date, cease to exist, and the Certificates for such shares shall be canceled as promptly as practicable thereafter, and no payment or distribution shall be made in consideration therefor.
(c) Subject to the provisions of this Section 2.02, each share of Greensburg Bancshares Common Stock issued and outstanding immediately prior to the Merger Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary Date (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”Treasury Stock) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued become and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivereceive at the election of the holder thereof as provided in Section 2.03, the following, without interest, :
(i) 0.7733 shares for each share of Greensburg Bancshares Common Stock with respect to which an election to receive cash has been effectively made and not revoked or lost, pursuant to Section 2.03 (a “Cash Election”), cash from First Guaranty Bancshares in an amount equal to $247.00 (the “Cash Consideration”) (collectively, “Cash Election Shares”);
(ii) for each share of Greensburg Bancshares Common Stock with respect to which an election to receive First Guaranty Bancshares Common Stock has been effectively made and not revoked or lost, pursuant to Section 2.03 (a “Stock Election”), 13.26 shares (“the Exchange Ratio”) of First Bank Guaranty Bancshares Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (collectively, the “Per Share Stock Election Shares”); or
(iii) a combination of the Cash Consideration,Consideration and the Stock Consideration (a “Mixed Election” and together with collectively the “Mixed Election Shares”).
(iv) Each share of Greensburg Bancshares Common Stock other than shares as to which a Cash Election, a Stock Election or a Mixed Election has been effectively made and not revoked or lost, pursuant to Section 2.03 (collectively, “Non-Election Shares”) shall be exchanged for the Stock Consideration, .
(v) Greensburg Bancshares acknowledges that if the “aggregate value of the Stock Consideration to be delivered as of the Merger Consideration”); provided, howeverEffective Date is less than 45% of the total consideration received by the Greensburg Bancshares shareholders, the Merger (or any modification to the structure of the Merger in accordance with Section 2.01(b)) may not qualify as a reorganization within the meaning of Section 368(a) of the Code and as a “plan of reorganization” within the meaning of Sections 354 and 361 of the Code. As a result, the Stock Consideration received by a Greensburg Bancshares shareholder on the Merger Effective Date may be reduced as provided by Section 8.2(f)taxable to the shareholder.
(d) All After the Merger Effective Date, shares of Malvern Greensburg Bancshares Common Stock, when so converted pursuant to Section 2.1(c) Stock shall be no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder shall thereafter by operation of this section represent the right to receive the Merger Consideration and any dividends or distributions with respect thereto or any dividends or distributions with a record date prior to the Merger Effective Date that were declared or made by Greensburg Bancshares on such shares of Greensburg Bancshares Common Stock in accordance with the terms of this Agreement on or prior to the Merger Effective Date and which remain unpaid at the Merger Effective Date.
(e) In the event First Guaranty Bancshares changes (or establishes a record date for changing) the number of, or provides for the exchange of, shares of First Guaranty Bancshares Common Stock issued and outstanding prior to the Merger Effective Date as a result of a certificate stock split, stock dividend, recapitalization, reclassification, or similar transaction with respect to the outstanding First Guaranty Bancshares Common Stock and the record date therefor shall be prior to the Merger Effective Date, the Exchange Ratio shall be proportionately and appropriately adjusted; provided, that no such adjustment shall be made with regard to First Guaranty Bancshares Common Stock if First Guaranty Bancshares issues additional shares of Common Stock and receives fair market value consideration for such shares.
(f) The consideration that any one Greensburg Bancshares shareholder may receive pursuant to Section 2.02 is referred to herein as the “Merger Consideration.”
(g) Any shares of Greensburg Bancshares Common Stock which are owned or held by any party hereto or any of their respective Subsidiaries (other than in a “Certificate”fiduciary capacity or in connection with debts previously contracted or by qualified shareholders of Greensburg Bancshares) at the Merger Effective Date shall be deemed cancelled and the Certificates for such shares shall be deemed retired, such shares shall not be converted into the Merger Consideration, and no cash or book-entry shares of capital stock of First Guaranty Bancshares shall be issued or exchanged therefor.
(h) Each share of First Guaranty Merger Subsidiary common stock issued and outstanding immediately before the Merger Effective Date shall be converted into and become an outstanding share of common stock of the Surviving Corporation.
(a “Book-Entry Share”i) registered The Surviving Corporation shall pay for any Dissenters’ Shares in accordance with Section 12:131 of the transfer books LBCL, and the holders thereof shall not be entitled to receive any Merger Consideration; provided, that if appraisal rights under Section 12:131 of Malvern that the LBCL with respect to any Dissenters’ Shares shall have been effectively withdrawn or lost, such shares will thereupon cease to be treated as Dissenters’ Shares and shall be converted into the right to receive the Stock Consideration pursuant to Section 2.02(a).
(j) The holders of Certificates (immediately prior to the Effective Time represented Merger) representing shares of Malvern Greensburg Bancshares Common Stock shall cease to have any rights with respect as stockholders of Greensburg Bancshares, except such rights, if any, as they may have pursuant to such Malvern Common Stock other than applicable law and this Agreement, including the right to receive the Stock Merger Consideration and Per Share Cash Consideration in accordance with Article 3, including respect to the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares represented by such Certificate.
(k) The shares of First Bank Guaranty Bancshares Common Stock into which such shares to be issued as Merger Consideration to holders of Malvern Greensburg Bancshares Common Stock have been converted together with in the amounts, if any, payable pursuant to Section 3.1(d) Merger will not be registered under the Securities Act or registered or qualified for sale under any state securities Law and subject to Section 3.1(e).
(e) Without limiting cannot be resold without registration or an exemption from registration under the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during Securities Act. Such shares will therefore be “restricted securities” as defined in Rule 144 under the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Securities Act. Each certificate representing First Guaranty Bancshares Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage issued in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully bear a restrictive legend that the effect of any such changesecurities represented by the certificate have not been registered under the Securities Act.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First BankCFFI, Malvern CFFI Merger Sub, CVBK, or their respective shareholdersthe shareholders of any of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock common stock, no par value per share, of First Bank CFFI Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after be converted into one share of common stock, no par value per share, of the Effective TimeSurviving Corporation.
(b) Each share of Malvern CVBK Common Stock outstanding immediately prior to the Effective Time (other than the Dissenting Shares (as defined in Section 4.4(a)), the Unvested Restricted Shares (as defined in Section 4.3(b)) and the shares of CVBK Common Stock to be cancelled in accordance with Section 3.1(c)) shall be converted into the right to receive $0.32 in cash, without interest thereon (the “Merger Consideration”).
(c) All shares of CVBK Common Stock issued and outstanding immediately prior to the Effective Time that is held are owned by MalvernCFFI, any wholly owned Malvern SubsidiaryCFFI Merger Sub, by First Bank CVBK or any First Bank Subsidiary of their respective Subsidiaries (in each case other than (i) shares of CVBK Common Stock held in any Malvern Benefit Plans or related trust accounts, managed accounts and the like, or otherwise held in any a fiduciary or agency capacity capacity, that are beneficially owned by third parties and (ii) shares of CVBK Common Stock held, directly or indirectly, by CFFI, CFFI Merger Sub or CVBK in respect of a debt previously contracted) shall be cancelled and shall cease to exist and no Merger Consideration shall be delivered in exchange therefor.
(e) No Dissenting Shares shall be converted in the Merger into the right to receive the Merger Consideration. All such shares shall be canceled and the holders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Section 13.1-729 et seq. of the VSCA; provided, however, that if any such shareholder fails to perfect his or her rights as a dissenting shareholder with respect to his or her Dissenting Shares in accordance with the applicable provisions of the VSCA or withdraws or loses such holder’s dissenter’s rights, such shares held by such shareholder shall be treated the same as all other holders of CVBK Common Stock who at the Effective Time held CVBK Common Stock.
(f) In the event CVBK changes the number of shares of CVBK Common Stock issued and outstanding prior to the Effective Time as a result of debts previously contracted) (collectivelya stock split, stock dividend or similar recapitalization with respect to such stock and the record date or effective date thereof is prior to the Effective Time, the “Canceled Shares”) Merger Consideration shall be treated pursuant to Section 2.4proportionately adjusted.
(cg) Each share of Malvern Common CVBK Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receiveshall, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and following the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares represent one share of Malvern Common Surviving Corporation Series A Preferred Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject (a) Each share of common stock, par value $.01 per share, of Sub issued and outstanding immediately prior to the provisions Effective Time, by virtue of this Article 2the Merger and without any other action taken by Parent, Sub or the Company, shall be, at the Effective Time, automatically converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation.
(b) Each share of common stock of the Company ("Company Common Stock") issued and outstanding immediately prior to the Effective Time shall be, at the Effective Time, by virtue of the Merger and without any action taken on the part of First Bankthe holder thereof, Malvern or their respective shareholders, be automatically converted into the right to receive (i) (A) cash equal to the quotient of Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000) divided by the number of shares of Malvern shall be converted as follows:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Company Common Stock issued and outstanding immediately prior to the Effective Time (excluding collectively, the Canceled "Outstanding Shares") shall be converted into and (B) a number of duly authorized, validly issued, fully paid and nonassessable shares of common stock, par value $.001 per share, of Parent ("Parent Common Stock") equal to the right quotient of Five Hundred Thousand (500,000) shares divided by the number of Outstanding Shares, subject in part however, to receive, without interest, (i) 0.7733 shares adjustment as hereinafter provided (the “Exchange Ratio”consideration referred to in clauses (i)(A) and (B) of First Bank Common Stock this subsection (b) is referred to as the “Stock "Initial Merger Consideration”") and (ii) the Earn-out Consideration Per Share, if any, contemplated by clauses (d) and (e) below, subject in part however, to claims for indemnification as hereinafter provided.
(c) The Initial Merger Consideration will be adjusted based on the actual earnings before interest and federal and state income taxes of the Company for the year ended September 30, 1996, determined in accordance with generally accepted accounting principles ("GAAP") consistently applied without giving effect to any earnings attributed to distributions or dividends from the Company's subsidiaries and without giving effect to the legal fees and expenses (subject to Article XI hereof) incurred by the Company in connection with the transactions contemplated by this Agreement ("EBIT"). If the EBIT of the Company for the year ended September 30, 1996 is less than or greater than Seven Hundred Fifty Thousand Dollars ($7.80 750,000) (the "Forecasted EBIT"), the Initial Merger Consideration will be increased or decreased, as the case may be, equally between the cash portion thereof and the Parent Common Stock portion thereof (it being understood and agreed that for purposes of valuing the Parent Common Stock, each share of Parent Common Stock shall be deemed to have a value of Four Dollars and Twenty Five Cents ($4.25)) so that the Initial Merger Consideration, as adjusted, equals the excess of (i) the product of six (6) times the EBIT of the Company for the year ended September 30, 1996 (the "Initial Merger Consideration Adjustment") over (ii) Two Hundred Fifty Thousand Dollars ($250,000). Any such adjustment will be effected in the manner set forth in Sections 2.1(e) and (f) and 2.2(d) below. By way of example, if the EBIT of the Company for such period is Seven Hundred Ninety Two Thousand Five Hundred Dollars ($792,500), the Initial Merger Consideration would be increased by Two Hundred Fifty Five Thousand Dollars ($255,000) in the aggregate (six (6) times the difference between the EBIT and the Forecasted EBIT), One Hundred Twenty Seven Thousand Five Hundred Dollars ($127,500) of which would be payable in cash and the remainder payable in thirty thousand (30,000) shares of Parent Common Stock ($127,500 divided by $4.25). If the “Per Share Cash Consideration,” and together with EBIT of the Stock ConsiderationCompany for such period is less than Seven Hundred Fifty Thousand Dollars ($750,000), the “Merger Consideration”); provided, however, the Initial Merger Consideration may will be reduced as provided by Section 8.2(f)decreased accordingly and such adjustment will be effected in the manner set forth in Sections 2.1(f) and (g) and 2.2(d) below.
(d) All shares In addition to the Initial Merger Consideration and with respect to the year ended September 30, 1997 (the "First EBIT Earn-out Period") and the year ended September 30, 1998 (the "Second EBIT Earn-out Period" and, together with the First Earn-out Period, the "EBIT Earn-out Periods") each share of Malvern Company Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be Stock issued and outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares shall be, at the Effective Time, by virtue of Malvern Common Stock shall cease to have the Merger and without any rights with respect to such Malvern Common Stock other than action taken on the part of the holder thereof, automatically converted into the right to receive the Stock Consideration cash and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Parent Common Stock into which such shares of Malvern Common Stock have been converted together with in the amounts, if any, payable pursuant to Section 3.1(damounts set forth below (the "EBIT Earn-out Consideration") and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding based on the date hereof, then adjusted earnings before income and taxes (without limiting any other rights "Adjusted EBIT") (as more fully defined below) of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any Surviving Corporation for such changeEBIT Earn-out Periods.
Appears in 1 contract
Samples: Merger Agreement (Waterlink Inc)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First BankPrimis, Malvern Acquisition Corp or their respective shareholdersInspecTech, or the stockholders of any of the foregoing, the shares of Malvern the constituent corporations to the Merger shall be converted as follows:
([a) ] Each share of capital stock Primis Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time. [b] Each share of First Bank Acquisition Corp Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) [c] Each share of Malvern InspecTech Common Stock issued and outstanding at the Effective Time shall be converted into cash in an amount equal to the InspecTech Value Per Share (as defined herein), without interest (the "Common Stock Exchange Ratio"). [d] Each share of InspecTech Preferred Stock issued and outstanding immediately prior to the Effective Time that is held by Malvernshall be converted into .09938 share of Primis Common Stock, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary subject to adjustment as provided in this Section 3.1 (the "Preferred Stock Exchange Ratio"). Unless adjusted as provided in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectivelythis Section 3.1, the “Canceled Shares”InspecTech Value Per Share shall equal $1.521, determined by dividing $12,168,068 (the "Aggregate Merger Consideration") shall be treated pursuant by 7,999,199, which is equal to Section 2.4.
(c) Each share the number of Malvern Common shares of InspecTech Capital Stock issued and outstanding immediately prior to as of the Effective Time (excluding date hereof and the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) number of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder InspecTech Capital Stock reserved for issuance as of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights date hereof with respect to such Malvern Common Stock other than outstanding options and warrants to purchase InspecTech Capital Stock. If the right to receive "Closing Date Shareholders' Equity", as defined herein, exceeds $1,000,000, the Stock Consideration and InspecTech Value Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective TimePreferred Stock Exchange Ratio shall be adjusted as follows: the InspecTech Value Per Share shall equal the quotient obtained by dividing (a) $12,168,068, Malvern should plus the amount by which the Closing Date Shareholders' Equity exceeds $715,227, by (ib) split7,999,199, combine or otherwise reclassify and the shares of Malvern Common StockPreferred Stock Exchange Ratio shall be determined by dividing the InspecTech Value Per Share, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock)as so adjusted, (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any by $15.307. If the Closing Date Shareholders' Equity Right for Malvern Common Stock, other is less than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)$500,000, the Merger Consideration InspecTech Value Per Share and the Preferred Stock Exchange Ratio shall be equitably adjusted as follows: the InspecTech Value Per Share shall equal the quotient obtained by dividing (x) $12,168,068, less the amount by which the Closing Date Shareholders' Equity is less than $715,227 by (y) 7,999,199, and proportionately the Preferred Stock Exchange Ratio shall be determined by dividing the InspecTech Value Per Share, as so adjusted, if necessary and without duplication, to reflect fully the effect of any such changeby $15.307.
Appears in 1 contract
Conversion of Shares. Subject to At the provisions of this Article 2, at the Merger Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern the parties hereto or their respective shareholders, the holders of shares of Malvern shall be converted as followsAccuMed Common Stock, AccuMed Preferred Stock, Ampersand Common Stock or Acquisition Sub Common Stock:
(a) Each share of capital stock of First Bank AccuMed Common Stock issued and outstanding immediately prior to at the Merger Effective Time (except for Dissenting Shares, if applicable, as defined in Section 1.3(b) hereof), subject to Sections 1.3 (e) and 1.6 hereof, shall remain issued cease to be outstanding, shall cease to exist and outstanding from shall be converted into and after become six thousand five hundred fifty-two ten thousandths (.6552) of one (1) share of Ampersand Common Stock, which ratio (the "Exchange Ratio") shall be reduced if any AccuMed Derivative Securities (as defined in Section 1.3(c) 2 7 hereof) are exchanged for or converted into shares of AccuMed Common Stock between the Execution Date and the Merger Effective TimeTime such that four million (4,000,000) shares of Ampersand Common Stock will be, in the aggregate, (i) exchanged for the AccuMed Common Stock, and/or (ii) reserved for issuance upon future conversion of shares of Ampersand Preferred Stock (as such term is hereinafter defined) into shares of Ampersand Common Stock.
(b) Each share of Malvern Common AccuMed Preferred Stock issued and outstanding immediately prior to at the Merger Effective Time that is held by Malvern(except for Dissenting Shares, any wholly owned Malvern Subsidiaryif applicable), by First Bank or any First Bank Subsidiary subject to Sections 1.3(e) and 1.6 hereof shall also cease to be outstanding, shall also cease to exist and shall be converted into and become one (1) share of Ampersand Series A Convertible Preferred Stock (the "Ampersand Preferred Stock"), which shall have the rights and preferences set forth in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or the Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock attached hereto as a result of debts previously contracted) (collectivelyExhibit E, including, but not limited to, the “Canceled Shares”) shall right to be treated pursuant to Section 2.4converted into shares of Ampersand Common Stock in accordance with the Exchange Ratio.
(c) Each share Any shares of Malvern Common Stock issued and outstanding immediately prior to AccuMed capital stock held by a holder who dissents from the Effective Time Merger in accordance with Section 262 of the Delaware General Corporation Law (excluding the Canceled Shares"DGCL") shall be converted into the right referred to receiveherein as "Dissenting Shares." Notwithstanding any other provision of this Agreement, without interestany Dissenting Shares shall not, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, after the Merger Consideration may Effective Time, be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant entitled to Section 2.1(c) shall no longer be outstanding vote for any purpose or receive any dividends or other distributions and shall automatically be canceled and retired and shall cease entitled only to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any such rights as are afforded with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive Dissenting Shares pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)DGCL.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject to (a) Each share of Company Common Stock issued and outstanding immediately before the provisions Effective Time (other than those held in the treasury of this Article 2the Company) and all rights in respect thereof, shall at the Effective Time, by virtue of the Merger and without any action on the part of First Bankany holder thereof, Malvern or their respective shareholdersforthwith cease to exist and be converted into and become exchangeable for, the 1.9399449 shares of Malvern shall be converted as follows:
common stock, par value $0.0001 per share (a) Each “Novume Common Stock”), of Novume (the “Company Common Exchange Ratio”), and each share of capital stock Series A Cumulative Convertible Redeemable Preferred Stock (“Company Preferred Stock”) of First Bank the Company issued and outstanding immediately prior to before the Effective Time and all rights in respect thereof, shall remain issued and outstanding from and after at the Effective Time, without any action on the part of any holder thereof, forthwith cease to exists and be converted into and become exchangeable for, 1 share of Series A Cumulative Convertible Redeemable Preferred Stock (“Novume Preferred Stock”), of Novume (collectively, the “Company Merger Consideration”, and such ratio of Company Preferred Stock to Novume Preferred Stock the “Company Preferred Exchange Ratio”). Fractional shares of Novume Common Stock and Novume Preferred Stock will not be issued in connection with the Company Merger. For a discussion of the treatment of fractional shares that would otherwise be issued, see Section 2.7.
(b) Each share of Malvern Brekford Common Stock issued and outstanding immediately prior to before the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares those held in the treasury of Brekford) and all rights in respect thereof, shall at the Effective Time, without any Malvern Benefit Plans or related trust accounts or otherwise held in action on the part of any fiduciary or agency capacity or as a result holder thereof, forthwith cease to exist and be converted into and become exchangeable for the right to receive 1/15th of debts previously contracted) one share (collectively, the “Canceled SharesBrekford Exchange Ratio”) shall of Novume Common Stock (the “Brekford Merger Consideration”). Fractional shares of Novume Common Stock will not be treated pursuant to issued in connection with the Brekford Merger. For a discussion of the treatment of fractional shares that would otherwise be issued, see Section 2.42.7.
(c) Each share of Malvern Common Stock issued and outstanding Commencing immediately after the Effective Time, each certificate which, immediately prior to the Effective Time Time, represented issued and outstanding shares of Company Common Stock or Company Preferred Stock (excluding the Canceled together, “Company Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank or Brekford Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,Brekford Shares” and and, together with the Stock ConsiderationCompany Shares, the “Merger ConsiderationShares”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than evidence the right to receive the Stock Company Merger Consideration and Per Share Cash Consideration or the Brekford Merger Consideration, as the case may be, on the basis hereinbefore set forth, but subject to the limitations set forth in accordance with Article 3Sections 2.3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts2.7, if any, payable pursuant to Section 3.1(d) 2.8 and subject to Section 3.1(e)2.9 hereof.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Novume Solutions, Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(ai) Each each share of capital stock of First Bank SCUSA (IL) common stock, no par value (“SCUSA (IL) Common Stock”), issued and outstanding immediately prior to the Effective Time shall remain issued be converted into 2.6665 (the “Exchange Ratio”) validly issued, fully paid and outstanding nonassessable shares of Holdings common stock, par value $0.01 per share (“Holdings Common Stock”), in certificated or book-entry form in the discretion of Holdings, delivery of which shall be made upon receipt by Holdings of a letter of transmittal from and after the Effective Time.
(b) Each holder of such share of Malvern SCUSA (IL) Common Stock accompanied by the certificate(s) representing such share of SCUSA (IL) Common Stock; (ii) each share of Holdings Common Stock issued and outstanding immediately prior to the Effective Time that is held owned by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary SCUSA (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”IL) shall be treated pursuant to Section 2.4.
cancelled without any consideration being issued or paid therefor; (ciii) Each each share of Malvern Common Stock SCUSA Merger Sub common stock, no par value, issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into one newly and validly issued, fully paid and nonassessable share of common stock of the right Surviving Corporation, and such shares shall be all of the outstanding shares of common stock of the Surviving Corporation as of the Effective Time; and (iv) each option to receive, without interest, purchase shares of SCUSA (iIL) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock that is outstanding (the “Stock Consideration”whether or not vested) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented (collectively, the “SCUSA (IL) Options”) shall automatically be converted into an option to purchase the number of whole shares of Malvern Holdings Common Stock shall cease that is equal to have any rights with respect the number of shares of SCUSA (IL) Common Stock subject to such Malvern SCUSA (IL) Option immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), at an exercise price per share of Holdings Common Stock other than (rounded up to the right nearest whole xxxxx) equal to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu exercise price for each such share of fractional shares of First Bank SCUSA (IL) Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
such SCUSA (eIL) Without limiting Option immediately prior to the other provisions of this Agreement Effective Time divided by the Exchange Ratio, and subject otherwise on the same terms and conditions as applied to Sections 6.2(deach such SCUSA (IL) and (e), if at any time during the period between the date of this Agreement and Option immediately prior to the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Merger Agreement (Santander Consumer USA Holdings Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankParent, Malvern NBB or FCB or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share of capital stock common stock, par value $1.25 per share, of First Bank Parent (“Parent Common Stock”) that is issued and outstanding immediately before the Effective Time shall remain issued and outstanding and shall remain unchanged by the Merger.
(b) Each share of common stock, par value $10.00 per share, of NBB (“NBB Common Stock”) that is issued and outstanding immediately before the Effective Time shall remain issued and outstanding and shall remain unchanged by the Merger and no additional shares of NBB Common Stock will be issued pursuant to this Agreement.
(c) Subject to Sections 2.1(e), 2.2 and 2.9, each share of common stock, par value $5.00 per share, of FCB (“FCB Common Stock”) that is issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and exchanged for the right to receive one of the following: (i) cash in the amount of $14.48 less any applicable withholding Taxes (the “Cash Consideration”); (ii) a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Ratio (as defined herein) (the “Stock Consideration”); or (iii) a combination of the Cash Consideration and Stock Consideration (the “Mixed Consideration”), in such proportions as requested by a FCB shareholder to the extent available after the proration of the total Merger Consideration (as defined herein) to ninety percent (90%) Stock Consideration and ten percent (10%) Cash Consideration in accordance with Section 2.2 of this Agreement (items (i), (ii) and (iii) are referred to herein individually as the “Per Share Merger Price” and collectively as the “Merger Consideration”). The “Exchange Ratio” shall be 0.4250 shares of Parent Common Stock per one share of FCB Common Stock. All shares of FCB Common Stock converted pursuant to this Section 2.1 shall no longer be outstanding from and after shall automatically be cancelled and retired and shall cease to exist as of the Effective Time.
(bd) Each certificate previously representing shares of FCB Common Stock (a “FCB Common Certificate”) and the non-certificated shares of FCB Common Stock (the “FCB Book-Entry Shares”) shall cease to represent any rights except the right to receive with respect to each share of FCB Common Stock (i) the Per Share Merger Price upon the surrender of such FCB Common Certificate or FCB Book-Entry Shares in accordance with Section 2.3, and (ii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.7.
(e) Each share of Malvern FCB Common Stock that is issued and outstanding immediately prior to the Effective Time that is held and owned by Malvern, any wholly owned Malvern Subsidiary, by First Bank of the parties hereto or any First Bank Subsidiary their respective subsidiaries (in each case other than shares of FCB Common Stock (i) held in any Malvern Benefit Plans or related trust accounts accounts, managed accounts, mutual funds or otherwise held in any a fiduciary or agency capacity that are beneficially owned by third parties or as a result held in FCB Benefit Plans or (ii) held, directly or indirectly, by Parent, NBB or FCB in respect of debts previously contracted) shall cease to be outstanding, shall be cancelled and retired without payment of any consideration, and shall cease to exist (collectively, the “Canceled Excluded Shares”) shall be treated pursuant to Section 2.4.
(c) ). Each share of Malvern Parent Common Stock that is issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) and owned by FCB shall cease to be outstanding, shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled cancelled and retired without payment of any consideration, and shall cease to exist; provided, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented such shares of Malvern Parent Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than resume the right to receive the Stock Consideration status of authorized and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional unissued shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Parent Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective TimeTime on the Effective Date, the outstanding shares of capital stock of Xxxxx.Xxx shall be canceled or converted, as the case may be, by virtue of the Merger and without any further action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted any holder thereof as follows:
(ai) Each each share of capital stock Common Stock, $.01 par value per share, of First Bank Xxxxx.Xxx (the "Xxxxx.Xxx Common Stock") shall be converted into 0.0614584 shares of Common Stock, $.01 par value per share, of Centennial ("Centennial Shares"); and (ii) each share of Xxxxx.Xxx Common Stock issued and held in the treasury of Xxxxx.Xxx shall be canceled and retired; and
(b) At the Effective Time, each share of Common Stock, $.01 par value per share, of FAC issued and outstanding immediately prior to the Effective Time thereto shall remain issued and outstanding from and after the Effective Time.
be converted into one (b1) Each share of Malvern Common Stock issued Stock, fully paid and outstanding immediately prior to nonassessable, of the Effective Time that is held by MalvernSurviving Corporation, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) which shall be treated pursuant to Section 2.4owned by Centennial.
(c) Each share No fractional Centennial Shares shall be issued in connection with the Merger. The number of Malvern Centennial Shares to be received by holders of Xxxxx.Xxx Common Stock issued and outstanding immediately prior shall be rounded up to the Effective Time next whole number of Centennial Shares if the fractional number of Centennial Shares to be received ends in a fraction that equals five tenths (excluding the Canceled Shares0.5) of a share or greater, and shall be converted into rounded down to the right next whole number of Centennial Shares if the fractional number of Centennial Shares to receive, without interest, be received ends in a fraction that equals less than five tenths (i) 0.7733 shares (the “Exchange Ratio”0.5) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)a share.
(d) All shares of Malvern Common StockAs soon as reasonably practicable after the Effective Time, when so converted pursuant the Surviving Corporation shall mail, or cause to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease mailed, to exist, and each holder of a certificate record of Xxxxx.Xxx Common
(a “Certificate”i) or book-entry share (a “Book-Entry Share”) registered in notice that the transfer books Merger has been consummated and instructions for effecting the surrender of Malvern their certificates that immediately prior to the Effective Time represented outstanding shares of Malvern Xxxxx.Xxx Common Stock ("Xxxxx.Xxx Certificates") in exchange for certificates representing shares of Centennial Shares and (ii) a letter of transmittal (which shall cease specify that delivery shall be effected, and risk of loss and title to the Xxxxx.Xxx Certificates shall pass, only upon delivery of the Xxxxx.Xxx Certificates to the Surviving Corporation and shall be in such form and have any rights such other provisions as the Surviving Corporation may reasonably specify). Upon the surrender of an Xxxxx.Xxx Certificate for cancellation to the Surviving Corporation, together with respect a properly completed and duly executed letter of transmittal and such other documents as may be reasonably requested, the holder of such Xxxxx.Xxx Certificate shall be entitled to receive, and the Surviving Corporation shall promptly deliver, in exchange therefor a certificate representing that number of whole Centennial Shares which such Malvern Common Stock other than holder has the right to receive in respect of the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive Xxxxx.Xxx Certificate surrendered pursuant to the provisions of this Section 2.5, cash in lieu of fractional 2 (after taking into account all shares of First Bank Xxxxx.Xxx Common Stock into then held by such holder), and the Xxxxx.Xxx Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Xxxxx.Xxx Common Stock which such is not registered in the transfer records of Xxxxx.Xxx, a certificate representing the proper number of shares of Malvern Centennial Shares may be issued to a transferee if the Xxxxx.Xxx Certificate representing such Xxxxx.Xxx Common Stock is presented to the Surviving Corporation, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)paid.
(e) Without limiting The parties intend to adopt this Agreement as a tax-free plan of reorganization and to consummate the other Merger as a merger in accordance with the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). Centennial Shares issued in the Merger shall be issued solely in exchange for the Xxxxx.Xxx Common Stock. No consideration that could constitute "other property" within the meaning of Section 356(b) of the Code is being paid by Centennial for the Xxxxx.Xxx Common Stock in the Merger. The parties shall not take a position on any tax returns inconsistent with this Agreement and subject to Sections 6.2(d) and subparagraph (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective TimeTime on the Effective Date, the outstanding shares of capital stock of STP shall be canceled or converted, as the case may be, by virtue of the Merger and without any further action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted any holder thereof as follows:
(ai) Each each share of capital stock Common Stock, $.01 par value per share, of First Bank STP (the "STP Common Stock") shall be converted into 0.0585417 shares of Common Stock, $.01 par value per share, of Centennial ("Centennial Shares"); and (ii) each share of STP Common Stock issued and held in the treasury of STP shall be canceled and retired; and
(b) At the Effective Time, each share of Common Stock, $.01 par value per share, of SAC issued and outstanding immediately prior to the Effective Time thereto shall remain issued and outstanding from and after the Effective Time.
be converted into one (b1) Each share of Malvern Common Stock issued Stock, fully paid and outstanding immediately prior to nonassessable, of the Effective Time that is held by MalvernSurviving Corporation, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) which shall be treated pursuant to Section 2.4owned by Centennial.
(c) Each share No fractional Centennial Shares shall be issued in connection with the Merger. The number of Malvern Centennial Shares to be received by holders of STP Common Stock issued and outstanding immediately prior shall be rounded up to the Effective Time next whole number of Centennial Shares if the fractional number of Centennial Shares to be received ends in a fraction that equals five tenths (excluding the Canceled Shares0.5) of a share or greater, and shall be converted into rounded down to the right next whole number of Centennial Shares if the fractional number of Centennial Shares to receive, without interest, be received ends in a fraction that equals less than five tenths (i) 0.7733 shares (the “Exchange Ratio”0.5) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)a share.
(d) All shares of Malvern Common StockAs soon as reasonably practicable after the Effective Time, when so converted pursuant the Surviving Corporation shall mail, or cause to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease mailed, to exist, and each holder of a certificate record of STP Common Stock (a “Certificate”i) or book-entry share (a “Book-Entry Share”) registered in notice that the transfer books Merger has been consummated and instructions for effecting the surrender of Malvern their certificates that immediately prior to the Effective Time represented outstanding shares of Malvern STP Common Stock ("STP Certificates") in exchange for certificates representing shares of Centennial Shares and (ii) a letter of transmittal (which shall cease specify that delivery shall be effected, and risk of loss and title to the STP Certificates shall pass, only upon delivery of the STP Certificates to the Surviving Corporation and shall be in such form and have any rights such other provisions as the Surviving Corporation may reasonably specify). Upon the surrender of an STP Certificate for cancellation to the Surviving Corporation, together with respect a properly completed and duly executed letter of transmittal and such other documents as may be reasonably requested, the holder of such STP Certificate shall be entitled to receive, and the Surviving Corporation shall promptly deliver, in exchange therefor a certificate representing that number of whole Centennial Shares which such Malvern Common Stock other than holder has the right to receive in respect of the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive STP Certificate surrendered pursuant to the provisions of this Section 2.5, cash in lieu of fractional 2 (after taking into account all shares of First Bank STP Common Stock into then held by such holder), and the STP Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of STP Common Stock which such is not registered in the transfer records of STP, a certificate representing the proper number of shares of Malvern Centennial Shares may be issued to a transferee if the STP Certificate representing such STP Common Stock is presented to the Surviving Corporation, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)paid.
(e) Without limiting The parties intend to adopt this Agreement as a tax-free plan of reorganization and to consummate the other Merger as a merger in accordance with the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). Centennial Shares issued in the Merger shall be issued solely in exchange for the STP Common Stock. No consideration that could constitute "other property" within the meaning of Section 356(b) of the Code is being paid by Centennial for the STP Common Stock in the Merger. The parties shall not take a position on any tax returns inconsistent with this Agreement and subject to Sections 6.2(d) and subparagraph (e). Neither STP nor Centennial shall intentionally take or cause to be taken action which would disqualify the Merger as a reorganization within the meaning of Section 368(a) of the Code.
(f) STP agrees that if, if at any time during the period between the date of this Agreement and after the Effective Time, Malvern should (i) splitCentennial considers or is advised that any further deeds, combine assignments or otherwise reclassify assurances are reasonably necessary or desirable to be obtained from STP or its officers or directors, to consummate the shares Merger or to carry out the purposes of Malvern Common Stock, (ii) make a dividend this Agreement at or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon after the exercise of any Malvern Stock Options outstanding on the date hereofEffective Time, then (without limiting any the parties and their respective officers and directors shall execute and deliver all such proper deeds, assignments and assurances and do all other rights of First Bank hereunder), things necessary or desirable to consummate the Merger Consideration shall be equitably and proportionately adjustedto carry out the purposes of this Agreement, if necessary and without duplication, to reflect fully in the effect name of any such changeSTP or otherwise.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern any Party or their respective shareholders, the shares holder of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock Share issued and outstanding immediately prior to the Effective Time (excluding other than Common Shares owned beneficially by the Canceled SharesBuyer or the Transitory Subsidiary, Dissenting Shares and Common Shares held in the Company's treasury) shall be cancelled and converted into and represent the right to receive, without interest, receive (isubject to the provisions of Section 1.10) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Remaining Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)if any.
(db) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be Each Series A Share issued and outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock (other than Series A Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Series A Shares held in the Company's treasury) shall be cancelled and converted into and represent the right to receive (subject to the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including provisions of Section 1.10) the rightSeries A Consideration, if any, for such Series A Share.
(c) Each Series B Share issued and outstanding immediately prior to the Effective Time (other than Series B Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Series B Shares held in the Company's treasury) shall be cancelled and converted into and represent the right to receive pursuant (subject to the provisions of Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with 1.10) the amountsSeries B Consideration, if any, payable pursuant for such Series B Share.
(d) Each Series C Share issued and outstanding immediately prior to Section 3.1(dthe Effective Time (other than Series C Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Series C Shares held in the Company's treasury) shall be cancelled and converted into and represent the right to receive (subject to the provisions of Section 3.1(e)1.10) the Series C Consideration, if any, for such Series C Share.
(e) Without limiting Each Series D Share issued and outstanding immediately prior to the Effective Time (other than Series D Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Series D Shares held in the Company's treasury) shall be cancelled and converted into and represent the right to receive (subject to the provisions of Section 1.10) the Series D Consideration for such Series D Share.
(f) Subject to Section 1.7, Company Stockholders shall be entitled to receive as of the Closing (i) the cash into which their Company Shares were converted pursuant to this Agreement and subject to Sections 6.2(dSection 1.5 (the "Closing Cash") and (e), if at any time during the period between the date ii) such portion of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Buyer Common Stock, Stock into which their Company Shares were converted pursuant to this Section 1.5 as is equal to the Closing Stock Percentage (iiexpressed as a percentage) make of such shares (the "Initial Shares"); the remaining Escrow Share Percentage (expressed as a dividend or other distribution in percentage) of the shares of Malvern Buyer Common Stock into which their Company Shares were converted pursuant to this Section 1.5 and otherwise deliverable to Company Stockholders, rounded to the nearest whole number (including any dividend or other distribution of securities convertible into Malvern Common Stockthe "Escrow Shares"), shall be deposited in escrow pursuant to Section 1.10 and shall be held and disposed of in accordance with the terms of the Escrow Agreement.
(iiig) engage in The Company has prepared Schedule 1.5 attached hereto as a reclassificationpreliminary summary of the allocation of proceeds to holders of Company Shares contemplated by this Section 1.5 based on, reorganization, recapitalization or exchange or among other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)things, the Merger Consideration shall be equitably Company's allocation of preferences set forth in this Section 1.5 and proportionately adjustedcertain assumptions concerning the Management Bonus Amount, if necessary and without duplicationthe Company Options, to reflect fully the effect of any such change.Stock Closing
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bankany person or entity, Malvern or their respective shareholders, on the shares of Malvern shall be converted as followsterms and subject to the conditions set forth in this Agreement:
(a) Each share of capital stock of First Bank each Series A Preferred Share issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or Dissenting Shares (as a result of debts previously contracteddefined below) (collectivelyeach such share, the an “Canceled SharesEligible Share”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivereceive (subject to any applicable withholding Taxes), without interest, (i) 0.7733 shares 0.080121 of a BHVN Common Share (the “Exchange Ratio”) ), free and clear of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash any Liens (the “Per Share Cash Merger Consideration,” and together with the Stock Considerationaggregate number of BHVN Common Shares payable, the “Aggregate Merger Consideration”); provided;
(b) each issued and outstanding common share of the Company, howeverno par value (“Company Common Share” and, together with the Series A Preferred Shares, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “CertificateCompany Shares”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that owned, by Therapeutics immediately prior to the Effective Time represented shares shall remain outstanding in the Surviving Company, unaffected by the Merger, and no consideration shall be delivered in respect thereof;
(c) subject to, and in reliance on, the representations, warranties and covenants made by each holder of Malvern Eligible Shares in the applicable Letter of Transmittal (in substantially the form attached hereto as Exhibit A), the issuance of the BHVN Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration Shares in accordance with Article 3the terms of and on the bases of the representations and warranties set forth in this Agreement will be issued without registration under the Securities Act of 1933, including as amended (the right“Securities Act”) pursuant to Regulation D promulgated under the Securities Act and will bear a legend in substantially the following form: “THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT UNLESS EITHER (I) BIOHAVEN PHARMACEUTICAL HOLDING COMPANY, LTD. (THE “COMPANY”) HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION OR (II) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144.”
(d) The legend set forth in Section 2.1(c) shall be removed from any BHVN Common Shares and Parent shall issue a certificate without such legend or any other legend to the holders of BHVN Common Shares or issue to such holders by electronic delivery upon the earliest of (i) the first date such BHVN Common Shares are sold or transferred in compliance with Rule 144 under the Securities Act and Parent has received such customary certifications and other information as it shall have reasonably requested to demonstrate compliance of such transfer or sale with Rule 144 under the Securities Act (including, if anyreasonably requested by Parent or its transfer agent), and (ii) the first date such BHVN Common Shares are eligible for sale under Rule 144 under the Securities Act, without the requirement for Parent to receive be in compliance with the current public information required under Rule 144 under the Securities Act. Parent shall be responsible for the fees of its transfer agent and all The Depositary Trust Company pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)foregoing.
(e) Without limiting Notwithstanding the other provisions of this Agreement and subject to Sections 6.2(dSection 2.1(a) and (eexcept as otherwise provided in Section 2.1(b), if at any time during each Eligible Share issued to an investor who is not an “accredited investor” as defined in Rule 501(a) of Regulation D of the period between Securities Act as of the date of this Agreement and Closing Date, will not receive the Effective Timeright to receive Per Share Merger Consideration, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution but will instead receive from Parent consideration in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, cash equal to reflect fully the effect of any such change$11.70 per Eligible Share.
Appears in 1 contract
Samples: Merger Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First BankBuyer, Malvern or their respective shareholdersMerger Sub, the shares Company or the holders of Malvern shall be converted as followsany of the securities described below:
(ai) Each share of capital stock of First Bank Merger Sub Common Stock issued and outstanding as of immediately prior to the Effective Time shall remain issued be converted into one (1) validly issued, fully paid and outstanding from and after nonassessable share of common stock, par value $0.01 per share, of the Effective TimeSurviving Corporation.
(bii) Each Except as otherwise provided herein, each share of Malvern Common Company Preferred Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled other than (x) shares of Company Preferred Stock cancelled pursuant to Section 3A(iv) and (y) Dissenting Shares) shall be converted into the right to receive, without interestupon delivery of duly executed and completed Requisite Equityholder Documents (or following the Closing, (i) 0.7733 shares (the “Exchange Ratio”) a Letter of First Bank Common Stock (the “Stock Consideration”Transmittal) and (ii) $7.80 surrender of a Certificate formerly representing such share in cash (the “manner provided in Section 4C, the Preferred Per Share Cash Consideration,” and together with the Stock Merger Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares and such share of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and Company Preferred Stock after such conversion shall automatically be canceled cancelled and retired and shall cease to exist. Prior to Closing, the Representative shall provide Buyer and each holder of Merger Sub with a certificate (a the “Preferred Allocation Certificate”) setting forth the aggregate amount of the Preferred Stock Merger Consideration for all of the holders of Company Preferred Stock (other than holders of (x) shares of Company Preferred Stock cancelled pursuant to Section 3A(iv), if any, and (y) Dissenting Shares, if any) and the aggregate portion of the Preferred Stock Merger Consideration to which each such holder is entitled for all shares of Company Preferred Stock held by such holder, and the Evolent Entities and Merger Sub shall have no liability to any Equityholder Party for relying on or book-entry paying and issuing the Preferred Stock Merger Consideration in accordance with such Preferred Allocation Certificate.
(iii) Except as otherwise provided herein, (A) each share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Common Stock issued and outstanding as of immediately prior to the Effective Time represented (other than (x) shares of Malvern Company Common Stock cancelled pursuant to Section 3A(iv), if any, and (y) Dissenting Shares, if any) shall be converted into the right to receive, upon delivery of duly executed and completed Requisite Equityholder Documents (or following the Closing, a Letter of Transmittal) and surrender of a Certificate formerly representing such share in the manner provided in Section 4C, the Closing Common Per Share Merger Consideration and the Additional Per Share Merger Consideration, and such share of Company Common Stock after such conversion shall automatically be cancelled and retired and shall cease to exist and (B) each unexercised and outstanding Option will be cancelled and cease to exist as of the Effective Time and each vested and unexercised Option to purchase Company Common Stock that is issued and outstanding as of immediately prior to the Effective Time shall be converted with respect to each share of Company Common Stock subject to such Option into the right to receive, upon delivery of duly executed and completed Requisite Equityholder Documents (or following the Closing, an Option Cancellation Agreement) in the manner provided in Section 4C, the Closing Option Per Share Merger Consideration and the Additional Per Share Merger Consideration. Prior to the Effective Time, the Company shall take such actions so that at the Effective Time all Options issued and outstanding as of the Effective Time shall be cancelled.
(iv) Each share of Company Capital Stock held in the treasury of the Company immediately prior to the Effective Time shall be cancelled and retired and shall cease to exist without any conversion thereof, and, in each case, no payment of cash or any other consideration or distribution shall be made with respect thereto.
(v) With respect to any Equityholder, the portion of the Total Merger Consideration receivable by such Equityholder shall be aggregated for all shares of Company Capital Stock and/or all shares of Company Common Stock subject to the Options held by such Equityholder, as applicable, and following such aggregation, any fractional cents shall be rounded to the nearest whole cent. Notwithstanding anything herein to the contrary, no fractional shares or units of Evolent Equity shall be issued in connection with an issuance to an Equityholder pursuant to this Agreement or otherwise. If an Equityholder would otherwise be entitled to receive a fraction of a share or unit of Evolent Equity, then cash shall be paid to such Equityholder in lieu of such fractional share or unit and such fractional share or unit shall be cancelled and voided.
(vi) It is understood that the cash exercise prices payable upon exercise in full of all Options held by all Optionholders issued and outstanding as of immediately prior to the Effective Time shall, notwithstanding the fact that such amounts will not be paid in cash to the Company, be taken into account for purposes of determining the Closing Common Per Share Merger Consideration and the Closing Option Per Share Merger Consideration payable to the Equityholders as part of the Total Merger Consideration pursuant to this Agreement and allocating such Total Merger Consideration among all such Equityholders.
(vii) As of the Effective Time, each holder of a Certificate (other than a Certificate representing Dissenting Shares, the treatment of which is addressed in Section 3B) shall cease to have any rights with respect thereto and any shares of Company Capital Stock that were represented thereby prior to the Effective Time, except the right to receive, upon surrender of such Certificate in accordance with Section 4C, a portion, without interest, in accordance with this Agreement, of (a) in the case of holders of Company Preferred Stock, the Preferred Stock Merger Consideration and (b) in the case of holders of Company Common Stock, the Closing Common Stock Merger Consideration and the Additional Merger Consideration. Surrendered Certificates shall forthwith be cancelled by the Surviving Corporation. As of the Effective Time, each Optionholder shall cease to have any rights with respect to such Malvern any Option and any shares of Company Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject such Option that were represented thereby prior to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should except the right to receive, upon surrender of such Option and delivery of an Option Cancellation Agreement in accordance with Section 4C, a portion, without interest, in accordance with this Agreement, of the Closing Option Per Share Merger Consideration and the Additional Per Share Merger Consideration.
(iviii) splitNone of the Surviving Corporation, combine Buyer or otherwise reclassify Merger Sub shall be liable to any Person in respect of amounts paid to a public official to the shares extent required under any applicable abandoned property, escheat or similar law.
(ix) In determining the proportion of Malvern Cash Consideration and Equity Consideration payable and/or issuable as Preferred Per Share Merger Consideration, Closing Common StockPer Share Merger Consideration, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon Additional Per Share Merger Consideration and Closing Option Per Share Merger Consideration to the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder)Equityholders, the Merger Cash Consideration and Equity Consideration shall be equitably apportioned ratably with respect thereto such that each Equityholder will receive the same proportion of Cash Consideration and proportionately adjustedEquity Consideration (subject to Section 3A(v)). Notwithstanding the foregoing or anything else herein to the contrary, if necessary in the event that an Equityholder has not delivered the Requisite Equityholder Documents prior to the Closing (such Equityholder, a “Non-Conforming Equityholder”), such Person shall not be entitled to receive, as part of such Person’s share of the Total Merger Consideration, Equity Consideration and instead such Person shall receive the Alternative Equityholder Consideration.
(x) Notwithstanding anything herein to the contrary, in no event shall the Evolent Entities or Merger Sub be obligated to make any payments of Cash Consideration or issuances of Equity Consideration pursuant to this Agreement in excess of the Total Merger Consideration.
(xi) The Evolent Equity to be issued hereunder has not been registered under the Securities Act, such shares of Evolent Equity are “restricted securities” as defined in Rule 144 adopted under the Securities Act and such Evolent Equity cannot be resold without duplication, to reflect fully registration under the effect of any Securities Act or under an exemption from such changeregistration.
Appears in 1 contract
Conversion of Shares. (a) Immediately prior to the Effective Time, each share of Company Preferred Stock shall be converted into one (1) share of Company Common Stock.
(b) The aggregate consideration to be paid by Parent and Merger Sub in the Merger to holders of Company Common Stock, the Converted Option Holders (as defined in Section 1.6 below) and the Converted Warrant Holders (as defined in Section 1.6 below) shall be U.S. $20,000,000, less the amount of (1) specified payment obligations of the Company as set forth on Schedule I hereto (as may be updated prior to the Closing) that would be assumed by Parent (the “Specified Payment Obligations”) and (2) fees, costs and expenses for which the Company Stockholders, the Converted Option Holders and the Converted Warrant Holders are responsible pursuant to Section 10.3 (the “Merger Consideration”).
(c) Subject to the provisions other subsections of this Article 2Section 1.5 and Sections 1.6, 1.8, 1.9 and 1.10, at the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder, Converted Option Holder or Converted Warrant Holder of Malvern the Company:
(i) each share of the common stock (par value $0.001 per share) of Merger Sub then outstanding shall remain outstanding and each certificate therefor shall be converted as follows:into one share of common stock of the Surviving Corporation;
(aii) Each each share of capital stock Company Common Stock held in the Company’s treasury as of First Bank issued the Effective Time shall be cancelled and retired and all rights in respect thereof shall cease to exist, without any conversion thereof or payment of any consideration therefor; and
(iii) each share of Company Common Stock outstanding immediately prior to the Effective Time shall remain issued and outstanding be converted into the right to receive from and after Parent, upon surrender of the Effective Time.
(b) Each certificate representing such share of Malvern Company Capital Stock, an amount of cash, without interest, equal to (i) the Merger Consideration divided by (ii) the sum of (a) the number of shares of Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary and (b) the number of Net Option Shares (as set forth in each case other than shares held the definition of Option Consideration in any Malvern Benefit Plans or related trust accounts or otherwise held Exhibit A) and Net Warrant Shares (as set forth in any fiduciary or agency capacity or as a result the definition of debts previously contractedWarrant Consideration in Exhibit A) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)Time.
(d) All shares Notwithstanding anything to the contrary contained in Section 1.5 or elsewhere in this Agreement, at or promptly after the Closing, $4,000,000 of Malvern the aggregate consideration otherwise payable to the holders of Company Common Stock, when so converted Converted Option Holders and Converted Warrant Holders pursuant to Section 2.1(c1.5 (the “Escrow Amount”) shall no longer be outstanding withheld from such stockholders Converted Option Holders and shall automatically Converted Warrant Holders and deposited with the Escrow Agent in an escrow account (the “Escrow Account”), to be canceled held and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration distributed in accordance with Article 3the terms of that certain Escrow Agreement, including substantially in the right, if any, to receive pursuant to Section 2.5, cash in lieu form of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with Exhibit D (the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e“Escrow Agreement”).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding shares of Company Capital Stock are changed into a different number or class of shares by reason of any stock split, combine division or otherwise reclassify the shares subdivision of Malvern Common Stockshares, (ii) make a dividend or other distribution in shares stock dividend, reverse stock split, consolidation of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock)shares, (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereofsimilar transaction, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately appropriately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Merger Agreement (Ipass Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as followsany party:
(a) Each share of capital stock common stock, par value $0.01 per share, of First Bank Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued be converted into and outstanding from become one (1) fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation, so that, after the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation’s common stock.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Company’s Common Stock issued and outstanding immediately prior to the Effective Time (excluding other than any Dissenting Shares and any shares to be canceled pursuant to Section 2.7(c) below) and all rights in respect thereof, shall by virtue of the Canceled SharesMerger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Common Stock Merger Consideration, in cash, payable to the holder thereof without interest, upon the satisfaction of the conditions set forth in Section 2.12(d), and such shares shall otherwise cease to be outstanding, shall be canceled and retired and cease to exist.
(c) Each share of Company Capital Stock held in the treasury of the Company immediately prior to the Effective Time shall be canceled and retired without any conversion thereof, and no payment or distribution shall be made with respect thereto. Each share of Common Stock held by a direct or indirect wholly owned Subsidiary of the Company immediately prior to the Effective Time shall remain outstanding and shall be converted into that number of shares of Surviving Corporation common stock that bears the same ratio to the aggregate number of outstanding shares of Surviving Corporation common stock as the number of shares of Common Stock held by such Subsidiary bore to the aggregate number of outstanding shares of Common Stock immediately prior to the Effective Time.
(i) Each share of Series A Preferred Stock, issued and outstanding immediately prior to the Effective Time, shall be converted into the right to receive the Series A Redemption Amount with respect to such share; (ii) each share of Series B Preferred Stock, issued and outstanding immediately prior to the Effective Time, shall be converted into the right to receive the Series B Redemption Amount with respect to such share; and (iii) each share of the Series D Preferred Stock, issued and outstanding immediately prior to the Effective Time, shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights Series D Redemption Amount with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)share.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(ai) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and Preferred Share outstanding immediately prior to the Effective Time (excluding the Canceled other than Dissenting Shares) shall be converted into the right to receivereceive the Preferred Merger Consideration, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash without interest (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced except as provided by Section 8.2(fin the Escrow Agreement).
(dii) All shares of Malvern except as otherwise provided in Section 2.04(iii), each Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be Share outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented (other than Dissenting Shares) shall be converted into the right to receive either: (x) the Common Share Amounts payable from time to time pursuant to Section 2.11, in cash without interest (except as provided in the Escrow Agreement) or (y) the Election Share Consideration, in cash without interest;
(iii) each Common Share held by the Company as treasury stock immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto; and
(iv) each share of common stock of MergerCo outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation and shall constitute the only outstanding shares of Malvern capital stock of the Surviving Corporation.
(b) Each holder of Common Stock shall cease to have any rights with respect to such Malvern Common Stock Shares outstanding as of the date of this Agreement (other than holders of Dissenting Shares or Holders of Common Shares that are also Holders of Preferred Shares) may elect (an “Election”) (by duly submitting an Election Form to the Exchange Agent as provided below) to convert all (but not less than all) of the Common Shares owned by such holder as of the date of this Agreement into the right to receive the Stock Election Share Consideration (and Per only the Election Share Cash Consideration Consideration) in respect of each such Common Share. The Company shall mail or cause to be mailed an Election Form as soon as practicable after the date hereof to each holder of Common Shares as of the date of this Agreement. An Election shall be effective only if the Exchange Agent shall have received an Election Form duly executed and completed in accordance with the instructions set forth therein and the Share Certificates representing such Common Shares by no later than 5:00 p.m. New York City time on the date which is the later of the (i) Closing Date or (ii) the date which is twenty business days following the date on which the Company first mailed or caused to be mailed the Election Forms to such holders of Common Shares (the “Election Deadline”). An Election may be revoked only by delivering to the Exchange Agent, prior to the Election Deadline, a written notice of revocation that identifies the Election Form being revoked, which revocation shall apply to all Common Shares set forth in the applicable Election Form. Any termination of this Agreement in accordance with Article 39 shall result in the revocation of all Election Forms delivered to the Exchange Agent on or prior to the date of such termination. If an Election Form is revoked, including the rightShare Certificates to which such Election Form applies, if anypreviously delivered to the Exchange Agent, shall be returned to receive the person revoking such Election Form. For purposes of this Agreement, “Non-Electing Common Shares” means all Common Shares (other than Dissenting Shares and Common Shares that are to be canceled pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e2.04(a)(iii).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should ): (i) split, combine as to which an effective Election has not been duly made or otherwise reclassify has been revoked as of the shares of Malvern Common StockElection Deadline or, (ii) the holders of which are not eligible to make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changean Election.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the First Step Merger and without any action on the part of First Crescent, Crescent Bank, Malvern Crescent Interim, Futurus, Futurus Bank, or their respective shareholdersthe shareholders of any of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank Crescent Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Crescent Bank Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, shall remain issued and outstanding from and after the “Canceled Shares”) shall be treated pursuant to Section 2.4Effective Time.
(c) Each share of Malvern Crescent Interim Common Stock issued and outstanding immediately prior to the Effective Time shall cease to be outstanding and shall be converted into and exchanged for one share of Futurus Common Stock.
(d) Each share of Futurus Common Stock (excluding shares held by Futurus, any Futurus Subsidiary, Crescent, or any Crescent Subsidiary, in each case other than in a fiduciary capacity or as a result of debts previously contracted and excluding shares held by shareholders of Futurus who perfect their statutory dissenters’ rights as provided in Section 3.3) issued and outstanding immediately prior to the Canceled Shares) Effective Time shall cease to be outstanding and shall be converted into the right to receive, without interest, :
(i) 0.7733 with respect to the shares of Futurus Common Stock listed on Schedule A to this Agreement held by the shareholders of Futurus listed on Schedule A to this Agreement, a number of restricted shares of Crescent Common Stock equal to the quotient obtained by dividing (x) $10.00 by (y) the Average Closing Price (the “Exchange Ratio”) value of First Bank such number of shares of Crescent Common Stock (based on the Average Closing Price, “Stock ConsiderationPayment Amount”); provided that, if the information supplied to Crescent pursuant to the Restricted Stock Purchase Agreement by any Futurus shareholder listed on Schedule A is determined by Crescent to be inaccurate or incomplete, or if any Futurus shareholder listed on Schedule A is not an “accredited investor” as defined in SEC Rule 501(a) and under the Securities Act, then such person shall not be entitled to exchange shares of Futurus Common Stock for shares of Crescent Common Stock pursuant to this Section 3.1(d)(i) and, as a result, will be eligible to receive the Cash Payment Amount in exchange for each share of Futurus Common Stock held by such shareholder immediately prior to the Effective Time, as provided for in Section 3.1(d)(ii); or
(ii) with respect to all other shares of Futurus Common Stock that are held by the shareholders of Futurus listed in Schedule A and the shares of Futurus Common Stock held by all other shareholders of Futurus, a check in the amount of $7.80 in cash 10.00 (without interest) (less any required withholding of Taxes, the “Per Share Cash ConsiderationPayment Amount,” and together collectively with the Stock ConsiderationPayment Amount, the Rights Payment and any cash in lieu of fractional shares payable pursuant to Section 3.4, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Crescent Banking Co)
Conversion of Shares. Subject to the provisions of this Article 2, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a1) Each share of capital stock of First Bank issued and outstanding immediately prior to Common Stock, $0.001 par value per share (the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern "Ventures Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernStock"), any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Sharesother than any Dissenting Shares (as defined in Section 1.8)) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically will be canceled and retired extinguished and shall cease to exist, and each holder automatically converted into that fraction of a certificate share of the Purchaser Common Stock equal to the Common Share Value divided by the product of (A) the total number of shares of Ventures Common Stock outstanding on a “Certificate”fully-diluted, fully-converted basis as though all convertible debt and equity securities (excluding Ventures Series A Preferred Stock, Ventures Series B Preferred Stock and Ventures Series C Preferred Stock) and options (whether vested or book-entry share (a “Book-Entry Share”unvested) registered in the transfer books of Malvern that and warrants which are convertible into or exercisable for Ventures Common Stock had been converted into or exercised for Ventures Common Stock immediately prior to the Effective Time represented (the "Fully-diluted Common Shares Outstanding") and (B) the Average Closing Stock Price.
(2) Each share of Series A Preferred Stock, $0.001 par value per share (the "Ventures Series A Preferred Stock"), issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) will be canceled and extinguished and automatically converted into:
(i) that fraction of a share of Purchaser Common Stock equal to the Series A Share Value divided by the product of (A) the total number of shares of Malvern Common Ventures Series A Preferred Stock shall cease outstanding on a fully-diluted, fully-converted basis as though all convertible debt and warrants which are convertible into or exercisable for Ventures Series A Preferred Stock had been converted into or exercised for Ventures Series A Preferred Stock immediately prior to have any rights with respect to such Malvern Common the Effective Time (the "Fully-diluted Series A Shares Outstanding") and (B) the Average Closing Stock other than Price;
(ii) the right to receive that fraction of the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including Advance Escrow Amount equal to 0.788 divided by the right, if any, number of Fully-diluted Series A Shares Outstanding;
(iii) the right to receive pursuant that fraction of the Cash Portion equal to Section 2.5, cash in lieu 0.788 divided by the number of fractional shares Fully-diluted Series A Shares Outstanding; and
(iv) the right to receive that fraction of First Bank Common Stock into which such shares the Tax Refund Amount equal to 0.788 divided by the number of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)Fully-diluted Series A Shares Outstanding.
(e3) Without limiting Each share of Series B Preferred Stock, $0.001 par value per share (the "Ventures Series B Preferred Stock"), issued and outstanding immediately prior to the Effective Time (other provisions than any Dissenting Shares) will be canceled and extinguished and automatically converted into that fraction of this Agreement a share of Purchaser Common Stock equal to the Series B Share Value divided by the product of (A) the total number of shares of Ventures Series B Preferred Stock outstanding on a fully-diluted, fully-converted basis as though all convertible debt and subject warrants which are convertible into or exercisable for Ventures Series B Preferred Stock had been converted into or exercised for Ventures Series B Preferred Stock immediately prior to Sections 6.2(dthe Effective Time and (B) the Average Closing Stock Price.
(4) Each share of Series C Preferred Stock, $0.001 par value per share (the "Ventures Series C Preferred Stock"), issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) will be canceled and extinguished and automatically converted into:
(i) that fraction of a share of Purchaser Common Stock equal to the Series C Share Value divided by the product of (A) the total number of shares of Ventures Series C Preferred Stock outstanding on a fully-diluted, fully-converted basis as though all convertible debt and warrants which are convertible into or exercisable for Ventures Series C Preferred Stock had been converted into or exercised for Ventures Series C Preferred Stock immediately prior to the Effective Time (the "Fully-diluted Series C Shares Outstanding") and (e), if at any time during B) the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, Average Closing Stock Price;
(ii) make a dividend or other distribution in shares the right to receive that fraction of Malvern Common Stock (including any dividend or other distribution the Advance Escrow Amount equal to 0.212 divided by the number of securities convertible into Malvern Common Stock), Fully-diluted Series C Shares Outstanding;
(iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or the right to receive that fraction of the Cash Portion equal to 0.212 divided by the number of Fully-diluted Series C Shares Outstanding; and
(iv) issue additional shares the right to receive that fraction of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise Tax Refund Amount equal to 0.212 divided by the number of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeFully-diluted Series C Shares Outstanding.
Appears in 1 contract
Samples: Merger Agreement (Lycos Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the First Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any stockholder or shareholder of Malvern shall be converted as followsthe Company or Parent:
(ai) Each share any shares of capital Company Capital Stock held as treasury stock of First Bank issued and outstanding or held or owned by the Company or Merger Sub immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) each holder share of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Capital Stock outstanding immediately prior to the Effective Time represented (excluding shares of Malvern Common Stock to be canceled pursuant to Section 1.5(a)(i) and excluding Dissenting Shares) shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive a number of Parent Shares as set forth on Schedule 1.5(a)(ii) (the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e“Merger Consideration”).
(eb) Without limiting Each share of common stock, $0.00001 par value per share, of Merger Sub issued and outstanding immediately prior to the other provisions Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of this Agreement and subject to Sections 6.2(d) and (e)common stock, if at $0.00001 par value per share, of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any time during the period between the date such shares shall, as of this Agreement and the Effective Time, Malvern should evidence ownership of such common stock of the Surviving Corporation.
(ic) splitAt the Second Effective Time, combine by virtue of the Second Merger and without any further action on the part of Parent, Merger Sub 2, the Surviving Corporation, any shares of Surviving Corporation’s capital stock held as treasury stock by the Surviving Corporation or otherwise reclassify held or owned by Parent immediately prior to the shares Second Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor. The consummation of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding Second Merger shall have no impact on the date hereof, then (without limiting any other rights units issued and outstanding by Merger Sub 2 and such units shall remain issued and outstanding at the Second Effective Time as units of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeSurviving Entity owned by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Portage Biotech Inc.)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger (and without any action on the part of First Bank, Malvern Buyer or their respective shareholders, the Company) the shares of Malvern shall be converted as follows:
(a) Each common stock, par value $0.0001 per share of capital stock the Company (each, a “Common Share” and, collectively, the “Common Shares”) and the outstanding shares of First Bank Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock of the Company (each a “Preferred Share” and, collectively, the “Preferred Shares” and, together with the Common Shares, the “Shares”) issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvernshall, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receivereceive the Common Consideration, without interestor, (i) 0.7733 at the election of any holder of Shares, the Preferred Consideration. The “Common Consideration” is the aggregate consideration consisting of shares of Common Stock. The “Preferred Consideration” is the aggregate consideration consisting of Parent Series C Preferred Stock, the terms of which are set forth in a certificate of designation to be filed by the Parent with the Secretary of State of the State of Nevada substantially in the form of Exhibit A, annexed hereto (the “Exchange RatioParent Series C Certificate of Designation”) of First Bank Common Stock (the “Stock ). The Preferred Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and , together with the Stock Common Consideration, shall hereinafter be referred to as the “Company Stockholder Consideration” and, together with the Management Consideration (as defined below), the “Merger Consideration”); provided, however. The Company Stockholder Consideration shall be allocated as follows and is being presented in terms of Common Stock on an “as converted” basis but may be issued in the form of Parent Series C Preferred Stock pursuant to this Section 2.5:
(a) Holders of Common Shares of the Company not addressed in 2.5(b)-(f) below shall exchange their respective Common Shares for the Management Consideration set forth in Section 2.6 below;
(b) Twenty Two Million Three Hundred and Thirty Three Thousand Three Hundred and Thirty Four (22,333,334) shares of Common Stock shall be issued to the holders of Series A Preferred Stock;
(c) One Million Eight Hundred Sixty Six Thousand Seven Hundred and Seventeen (1,866,717) shares of Common Stock shall be issued to the holders of Series B Preferred Stock the receipt of which shall be conditioned on the receipt of a one year lockup agreement (the “One Year Lockup Agreement”) from each holder of Series B Preferred Stock, the Merger Consideration may be reduced form of which is attached hereto as provided by Section 8.2(f).Exhibit C;
(d) All Up to Sixteen Million Six Hundred and Sixty Six Thousand Six Hundred and Sixty Seven (16,666,667) shares of Malvern Common Stock shall be issued to holders (the “Company Xxxxxxx Investors”) of Series C Preferred Stock issued in connection with the Company’s private placement of up to Eleven Million ($11,000,000) Dollars (inclusive of Xxxxxxx’x over-allotment option) of the Company’s securities (the “Company Financing”) pursuant to which Xxxxxxx & Company (UK), Ltd. (“Xxxxxxx”) served as placement agent, based on a 3:1 ratio with each three Common Shares underlying such shares of Series C Preferred Stock of the Company held by a Company Xxxxxxx Investor entitled to receive one share of Common Stock. For the avoidance of doubt, less than 16,666,667 shares of Common Stock may be issued to the Company Xxxxxxx Investors pursuant to this section (i) in the event less than $11,000,000 is raised in the Company Financing, and (ii) depending upon the final per share pricing in the Company Financing. The parties agree that the ultimate per share price for the Company Financing must be mutually agreed to by the Boards of Directors of the Parent and the Company;
(e) Xxxxxxx shall be issued warrants (the “Xxxxxxx Warrants”) to purchase shares of Common Stock, when so converted pursuant to Section 2.1(c) in such form and with such terms and pricing as shall no longer be outstanding mutually agreed upon between the Company and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately Parent prior to the Effective Time represented Closing. The number of shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares the Xxxxxxx Warrants to be issued will be exercisable shall equal the quotient of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify 10% of the shares of Malvern Common Stock, total dollar amount raised in the Company Financing divided by (ii) make a dividend or other distribution in three (3); and
(f) One Million Eight Hundred and Fifty Thousand (1,850,000) shares of Malvern Common Stock shall be issued to the holders of Common Shares of the Company issued in connection with the closing of the Keystone Acquisition (including any dividend or other distribution each, a “Keystone Holder”) the receipt of securities convertible into Malvern which shall be conditioned on the receipt of a Two Year Lockup Agreement (as defined below) from each Keystone Holder. The Company Stockholder Consideration, in the aggregate and on an “as converted” basis, shall not exceed Forty Two Million, Seven Hundred and Sixteen Thousand Seven Hundred and Eighteen (42,716,718) shares of Common Stock and Xxxxxxx Warrants to purchase up to Two Hundred and Fifty Thousand (250,000) shares of Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Conversion of Shares. (a) Subject to the provisions of this Article 2Section 2.3 hereof, at the Effective Time, the following shall occur:
(i) each share of common stock, $.01 par value, of Adaytum (“Adaytum Common Stock”) issued and outstanding immediately prior to the Effective Time (excluding any Adaytum Common Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Adaytum Common Excluded Shares”) will be automatically canceled in the Merger without payment of any consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of First Bankthe holder thereof, Malvern or their respective shareholders, the shares of Malvern shall be converted into the right to receive the Common Per Share Amount (as follows:defined below);
(aii) Each each share of capital stock Series A Preferred Stock, $.01 par value, of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
Adaytum (b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled SharesSeries A Preferred Stock”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding any Series A Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series A Excluded Shares”) will be automatically canceled in the Canceled Shares) shall Merger without payment of any consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receivereceive the Common Per Share Amount;
(iii) each share of Series B Preferred Stock, without interest$.01 par value, of Adaytum (i) 0.7733 shares (the “Exchange RatioSeries B Preferred Stock”) of First Bank Common Stock (the “Stock Consideration”) issued and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented (excluding any Series B Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series B Excluded Shares”) will be automatically canceled in the Merger without payment of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Stock Consideration and Common Per Share Cash Consideration Amount;
(iv) each share of Series C Preferred Stock, $.01 par value, of Adaytum (“Series C Preferred Stock”) issued and outstanding immediately prior to the Effective Time (excluding any Series C Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series C Excluded Shares”) will be automatically canceled in accordance with Article 3the Merger without payment of any consideration therefor, including and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the rightMerger and without any action on the part of the holder thereof, if any, be converted into the right to receive pursuant the Common Per Share Amount;
(v) each share of Series D Preferred Stock, $.01 par value, of Adaytum (“Series D Preferred Stock”) issued and outstanding immediately prior to Section 2.5the Effective Time (excluding any Series D Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, cash or by Adaytum or any subsidiary of Adaytum, which shares (“Series D Excluded Shares”) will be automatically canceled in lieu the Merger without payment of fractional any consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Series D Per Share Amount (as defined below);
(vi) each share of Series E Preferred Stock, $.01 par value, of Adaytum (“Series E Preferred Stock”) issued and outstanding immediately prior to the Effective Time (excluding any Series E Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series E Excluded Shares”) will be automatically canceled in the Merger without payment of First Bank Common any consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Series E Per Share Amount (as defined below);
(vii) each share of Series F Preferred Stock, $.01 par value, of Adaytum (“Series F Preferred Stock”) issued and outstanding immediately prior to the Effective Time (excluding any Series F Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series F Excluded Shares”) will be automatically canceled in the Merger without payment of any consideration therefor, and excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into which such shares the right to receive the Series F Per Share Amount (as defined below); and
(viii) each share of Malvern Common Stock have been converted Series G Preferred Stock, $.01 par value, of Adaytum (“Series G Preferred Stock”, and together with the amountsSeries A Preferred Stock, if anythe Series B Preferred Stock, payable pursuant the Series C Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock, and the Series F Preferred Stock, the “Adaytum Preferred Stock”) issued and outstanding immediately prior to Section 3.1(dthe Effective Time (excluding any Series G Preferred Stock held by Parent or Merger Sub or any other subsidiary of Parent, or by Adaytum or any subsidiary of Adaytum, which shares (“Series G Excluded Shares”) will be automatically canceled in the Merger without payment of any consideration therefor, and subject excluding Dissenting Shares (as defined below)), will automatically, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to Section 3.1(e).receive the Common Per Share Amount. The Adaytum Common Stock together with the Adaytum Preferred Stock are sometimes referred to in this Agreement as the “Adaytum Capital Stock”
(eb) Without limiting the other provisions For purposes of this Agreement and subject to Sections 6.2(d) and (e)Agreement, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should following shall apply:
(i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.term “Series D Per Share Amount” means $8.551,
Appears in 1 contract
Conversion of Shares. Subject The manner and basis of converting the capital stock of TI into OSI Common Stock, subject to the provisions of this Article 2SECTION 5(C) below with respect to fractional shares, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares of Malvern shall be converted as follows:
(a) Each share of capital TI common stock of First Bank issued and which shall be outstanding immediately prior to the Effective Time Date shall remain issued and outstanding from and after at the Effective TimeDate, by virtue of the merger and without any action on the part of the holder thereof, be converted into and exchanged for 535 shares of OSI Common Stock.
(b) Each share of Malvern Common Stock issued and The Outback capital stock outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) Date shall be treated pursuant to Section 2.4unaffected by the merger.
(c) Each share The stock transfer books of Malvern Common Stock issued and outstanding immediately prior to TI shall be closed as of the close of business on the Effective Time (excluding the Canceled Shares) Date and no transfer of record of any of its capital stock shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)take place thereafter.
(d) All No fractional shares of Malvern OSI Common Stock and no certificates or scrip therefor shall be issued. Instead one whole share of OSI Common Stock shall be issued to each holder of shares of common stock of the merging corporations whose fractional share interest is .5 or more of one whole share; each fraction of less than .5 of one whole share shall be disregarded.
(e) Notwithstanding the foregoing, the OSI shall not be required to issue or distribute more than 53,500 shares of OSI Common Stock pursuant to the merger, less any shares reserved for dissenters' rights, as described in Article 1 of the Reorganization Agreement.
(f) All of the shares of OSI Common Stock, when so converted delivered pursuant to Section 2.1(cthe provisions of these Articles of Merger, shall be validly issued, fully paid and nonassessable.
(g) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to existAt the Effective Date, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented certificates representing shares of Malvern Common Stock the common stock of TI shall thereupon cease to have any rights with respect to such Malvern shares and shall be deemed to be a shareholder of OSI to the extent of the number of shares of OSI Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration which such shareholder shall be entitled in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu these Articles of fractional Merger; and shall surrender certificates representing shares of First Bank the common stock of TI to the OSI, whereupon such holder shall receive a certificate or certificates for the number of shares of OSI Common Stock into to which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)holder is entitled hereunder.
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Outback Steakhouse Inc)
Conversion of Shares. (a) Subject to the provisions of this Article 2Sections 1.8(a), 1.9 and 1.10, at the Effective Time, by virtue of the Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Sub, the shares Company or any shareholder of Malvern shall be converted as followsthe Company:
(a) Each share of capital stock of First Bank issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by MalvernOutstanding Company Capital Stock, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued Excluded Shares and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) Dissenting Shares shall be converted into the right to receivereceive that portion of the Total Merger Consideration as set forth in this Section 1.5. The "Total Merger Consideration" shall be equal to (A) that number of shares of the common stock of Parent, without interest$0.001 par value per share ("Parent Common Stock"), equal to 19.99% of the Parent Adjusted Capital (the "Total Merger Shares"), plus (B) a cash amount equal to the total of the Company's ---- cash balance and cash equivalents as of the Closing Date and any amount of cash spent on capital expenditures (as defined by GAAP) subsequent to the date hereof but prior to the Closing Date less the Deducted Liabilities (the "Cash ---- Consideration Amount"). "Deducted Liabilities" shall mean (i) 0.7733 liabilities (other than the long term portion of the liabilities of the Acquired Entities under leases which are treated as capital leases under GAAP as of the Closing Date) required by GAAP to be reflected on the consolidated balance sheet of the Acquired Entities on the Closing Date, (ii) the outstanding balance of all Advances under the Loan Agreement as of the Closing Date (without duplication of liabilities provided for in clause (i) above), as of the Closing Date and (iii) all customer deposits, prepaid sales and similar items, including specifically, those related to that certain customer deposit of $1.5 million from Memcorp Inc. to the Company and similar arrangements (without duplication of liabilities provided for in clause (i) above). "Parent Adjusted Capital" shall be the number of shares of Parent Common Stock that are outstanding immediately prior to Closing (the “Exchange Ratio”"Gross Shares") less any shares of First Bank Parent Common Stock (the “Stock Consideration”"Adjustment Shares") and (ii) $7.80 issued by Parent subsequent to September 30, 2001 in cash (the “Per Share Cash Consideration,” and together connection with the Stock Considerationany merger, the “Merger Consideration”); providedconsolidation, howeverbusiness combination, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted investment or other similar transaction pursuant to Section 2.1(cwhich Parent acquires (x) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder 50% or more of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books voting power of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, Entity or (ivy) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.all or
Appears in 1 contract
Samples: Merger Agreement (Microtune Inc)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger and without any action on the part of First Bankthe shareholders of HomeTown or American, Malvern or their respective shareholdersas the case may be, such shareholders will be entitled to the shares of Malvern shall be converted as followsfollowing:
(a) Each share of capital stock common stock, par value $1.00 per share, of First Bank American (“American Common Stock”) that is issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after shall remain unchanged by the Effective TimeMerger.
(b) Each share of Malvern common stock, par value $5.00 per share, of HomeTown (“HomeTown Common Stock Stock”) that is issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into and exchanged for the right to receive, without interest, (i) 0.7733 receive 0.4150 shares (the “Exchange Ratio”) of First Bank American Common Stock Stock, plus cash in lieu of any fractional shares pursuant to Section 2.4 (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationcollectively, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) . All shares of Malvern HomeTown Common Stock, when so Stock converted pursuant to this Section 2.1(c) 2.1 shall no longer be outstanding and shall automatically be canceled cancelled and retired and shall cease to exist, and each holder exist as of a the Effective Time.
(c) Each certificate previously representing shares of HomeTown Common Stock (a “HomeTown Common Certificate”) or bookand the non-entry share certificated shares of HomeTown Common Stock (a the “HomeTown Book-Entry ShareShares”) registered shall cease to represent any rights except the right to receive with respect to each underlying share of HomeTown Common Stock (i) the Merger Consideration upon the surrender of such HomeTown Common Certificate or HomeTown Book-Entry Shares in accordance with Section 2.2, and (ii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.6.
(d) Each share of HomeTown Common Stock held by either party hereto and each share of American Common Stock held by HomeTown or any Subsidiary (as defined in the transfer books Agreement) of Malvern that immediately HomeTown prior to the Effective Time represented (in each case other than in a fiduciary or agency capacity or on behalf of third parties as a result of debts previously contracted) shall be cancelled and retired and shall cease to exist at the Effective Time and no consideration shall be issued in exchange therefor; provided, that such shares of Malvern American Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than resume the right to receive the Stock Consideration status of authorized and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional unissued shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern American Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change.
Appears in 1 contract
Samples: Merger Agreement (American National Bankshares Inc.)
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern the Parties to this Agreement or their respective shareholdersthe shareholders of any of the foregoing, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each share of capital stock of First Bank Buyer issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Seller Common Stock issued and outstanding immediately prior to the Effective Time that is Time, which shall include all shares of Seller Series A Preferred Stock which shall be converted automatically pursuant to their terms on a one-for-one basis into shares of Seller Common Stock immediately prior to the Effective Time, except for shares of Seller Common Stock held by Malvern, any wholly owned Malvern Subsidiary, by First Bank Seller or any First Bank Subsidiary Buyer (in each case other than shares of Seller Common Stock (x) held in any Malvern Benefit Plans or related trust accounts, managed accounts and the like, or otherwise held in a fiduciary capacity, that are beneficially owned by third parties (any fiduciary such shares, and shares of Buyer Common Stock which are similarly held, whether held directly or agency capacity indirectly by Seller or Buyer, being referred to herein as a result of debts previously contracted) (collectively, the “Canceled Trust Account Shares”) or (y) held on account of a debt previously contracted (any such shares of Seller Common Stock, and shares of Buyer Common Stock which are similarly held directly or indirectly by Seller or Buyer, being referred herein as “DPC Shares”)), shall be treated converted, in accordance with the procedures set forth in Article 4 and subject to Section 3.1(d) and Section 3.2, into the right to receive a number of shares of Buyer Common Stock equal to the quotient of (x) 1,775,000 less the number of shares issuable pursuant to Section 2.4.
the Option Settlement Payments (cas hereinafter defined), divided by (y) Each share the number of Malvern shares of Seller Common Stock issued and outstanding immediately prior to at the Effective Time (excluding assuming the Canceled Shares) shall be converted conversion of all shares of Seller Series A Preferred Stock on a one-for-one basis into the right to receive, without interest, (i) 0.7733 shares Seller Common Stock (the “Exchange Ratio”) ). The aggregate merger consideration, including Option Settlement Payments, shall not exceed 1,775,000 shares of First Bank Buyer Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, .
(c) All of the shares of Seller Common Stock converted into the right to receive the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) this Article 3 shall no longer be outstanding and shall automatically be canceled and retired cancelled and shall cease to existexist as of the Effective Time, and each holder certificate previously representing any such shares of a certificate Seller Common Stock (each, a “Seller Stock Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereafter represent only the right to receive without interest (i) the Stock Consideration number of whole shares of Buyer Common Stock, and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, (ii) cash in lieu of fractional shares, into which the shares of First Bank Seller Common Stock into which represented by such shares of Malvern Common Seller Stock Certificate have been converted together with the amounts, if any, payable pursuant to this Section 3.1(d) 3.1 and subject to Section 3.1(e)3.3.
(ed) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) the outstanding shares of Buyer Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, combine reverse stock split or otherwise reclassify other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the Exchange Ratio payable pursuant to this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, at the Effective Time, all shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Seller Common Stock that are held by Seller or Buyer (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Trust Account Shares and DPC Shares) shall be cancelled and shall cease to exist and no Merger Consideration shall be equitably payable or delivered in exchange therefor. All shares of Buyer Common Stock that are held by Seller (other than Trust Account Shares and proportionately adjusted, if necessary and without duplication, to reflect fully the effect DPC Shares) shall become treasury stock of any such changeBuyer.
Appears in 1 contract
Samples: Merger Agreement (Seacoast Banking Corp of Florida)
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger Merger, and without any action on the part of First BankParent, Malvern Merger Sub, Company or their respective shareholders, the shares holders of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock common stock, $.01 par value, of First Bank Company ("COMPANY COMMON STOCK") issued and outstanding immediately prior to before the Effective Time (excluding (i) shares of Company Common Stock, if any, held by Persons who have not voted such shares for approval of the Merger and with respect to which such Persons shall remain issued have perfected dissenters' rights in accordance with Delaware Law ("COMMON DISSENTING SHARES"), (ii) those held in the treasury of Company, and outstanding from (iii) those owned by any wholly owned Subsidiary of Company) and after all rights in respect thereof, shall, forthwith cease to exist in accordance with Delaware law and be exchanged for 2.10 (the Effective Time"EXCHANGE RATIO") common shares of Parent ("PARENT COMMON SHARES") (and cash in lieu of fractional shares pursuant to Section 3.04).
(b) Each share of Malvern Common Stock (i) Class B Preferred Stock, $.01 par value, of Company ("CLASS B PREFERRED STOCK") and (ii) Class C Preferred Stock, $.01 par value, of Company ("CLASS C PREFERRED STOCK" and, together with the Class B Preferred Stock, the "COMPANY PREFERRED STOCK") issued and outstanding immediately prior to before the Effective Time that is (excluding (i) shares of Company Preferred Stock, if any, held by MalvernPersons who have not voted such shares for approval of the Merger and with respect to which such Persons shall have perfected dissenters' rights in accordance with Delaware Law ("PREFERRED DISSENTING SHARES" and, together with Common Dissenting Shares, "DISSENTING SHARES"), (ii) those held in the treasury of Company, and (iii) those owned by any wholly owned Malvern SubsidiarySubsidiary of Company), by First Bank or and all rights in respect thereof (including, without limitation, any First Bank Subsidiary rights to accrued but unpaid dividends), shall forthwith cease to exist in accordance with Delaware law and be exchanged for 2.10 Parent Common Shares (and cash in each case other than lieu of fractional shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.43.04).
(c) Each share of Malvern Company Common Stock issued and outstanding or Company Preferred Stock held in the treasury of Company or owned by any wholly owned Subsidiary of Company immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 canceled and retired and no shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Considerationstock or other securities of Parent, the “Merger Consideration”); providedSurviving Corporation or any other corporation shall be issuable, howeverand no payment of other consideration shall be made, the Merger Consideration may be reduced as provided by Section 8.2(f)with respect thereto.
(d) All Each issued and outstanding share of capital stock of Merger Sub shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation. From and after the Effective Time, each outstanding certificate theretofore representing shares of Malvern Common Stock, when so converted pursuant Merger Sub common stock shall be deemed for all purposes to Section 2.1(c) shall no longer be outstanding evidence ownership of and shall automatically be canceled and retired and shall cease to exist, and each holder represent the number of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock Surviving Corporation common stock into which such shares of Malvern Common Stock Merger Sub common stock shall have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and converted. Promptly after the Effective Time, Malvern should (i) split, combine or otherwise reclassify the Surviving Corporation shall issue to Parent a stock certificate representing 100 shares of Malvern Common Stock, (ii) make a dividend or other distribution Surviving Corporation common stock in exchange for the certificate that formerly represented shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock)Merger Sub common stock, (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration which shall be equitably surrendered by Parent and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changecanceled.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at (a) At the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholders, the shares holder thereof,
(A) each share of Malvern Parent Common Stock issued and outstanding shall be converted as follows:into and be deemed to become one share of Subsidiary Common Stock.
(aB) Each each share of capital stock of First Bank Parent Series A Preferred Stock issued and outstanding immediately prior shall be converted into and be deemed to the Effective Time shall remain become one share of Subsidiary Series A Preferred Stock.
(C) each share of Parent Series B Preferred Stock issued and outstanding from shall be converted into and be deemed to become one share of Subsidiary Series B Preferred Stock.
(D) each share of Parent Series C Preferred Stock issued and outstanding shall be converted into and be deemed to become one share of Subsidiary Series C Preferred Stock.
(E) each share of Parent Series D Preferred Stock issued and outstanding shall be converted into and be deemed to become one share of Subsidiary Series D Preferred Stock.
(b) From and after the Effective Time.
, (bi) Each share each certificate theretofore representing shares of Malvern Common Stock issued and outstanding immediately prior Parent Common Stock, upon surrender to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, shall entitle the holder to receive in exchange therefor a certificate or certificates representing the number of shares of Subsidiary Common Stock, into which the stock theretofore represented by First Bank the certificate so surrendered shall have been converted in accordance with the paragraph above and (ii) each certificate theretofore representing shares of issued and outstanding Parent Series A Preferred Stock, Parent Series B Preferred Stock, Parent Series C Preferred Stock, and Parent Series D Preferred Stock upon surrender to Subsidiary, shall entitle the holder to receive in exchange therefor a certificate or any First Bank certificates representing the number of shares of Subsidiary (Series A Preferred Stock, Subsidiary Series B Preferred Stock, Subsidiary Series C Preferred Stock, or Subsidiary Series D Preferred Stock into which the stock theretofore represented by the certificate so surrendered shall have been converted in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, accordance with the “Canceled Shares”) shall be treated pursuant to Section 2.4paragraph above.
(c) Each share share, if any, of Malvern Common Stock issued and outstanding immediately prior to capital stock held in Parent's treasury at the Effective Time (excluding the Canceled Shares) shall automatically be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f)cancelled.
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and At the Effective Time, Malvern should (i) split, combine or otherwise reclassify the 100 shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Subsidiary Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options presently issued and outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration and held by Parent shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changecancelled.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 23, at the Effective Time, by virtue of the Merger and without any action on the part of First Bank, Malvern or their respective shareholdersthe holders thereof, the shares of Malvern the constituent corporations shall be converted as follows:
(a) Each each share of capital stock of First Bank SouthCrest Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.
(b1) Each each share of Malvern Maplesville Common Stock issued and outstanding immediately prior to at the Effective Time that is (excluding shares held by MalvernSouthCrest or Maplesville or either of their subsidiaries, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any a fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) and excluding shares held by Maplesville shareholders who perfect their dissenters’ rights of appraisal as provided in Section 3.4 of this Agreement), shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, exchanged for: (i) 0.7733 133.03 shares (the “Exchange Ratio”) of First Bank SouthCrest Common Stock (the “Common Stock Consideration”) and (ii) $7.80 2,915.44 in cash (the “Per Share Cash Consideration,” and together ”) (collectively, with the Preferred Stock Consideration, the “Merger Consideration”); provided.
(2) each share of Maplesville Preferred Stock issued and outstanding at the Effective Time (excluding shares held by SouthCrest or Maplesville or either of their subsidiaries, howeverin each case other than in a fiduciary capacity or as a result of debts previously contracted, the Merger Consideration may be reduced and excluding shares held by Maplesville shareholders who perfect their dissenters’ rights of appraisal as provided by in Section 8.2(f3.4 of this Agreement), shall be exchanged for 17.01 shares of SouthCrest Common Stock (the “Preferred Stock Consideration”).
(dc) All shares each share of Malvern Common Stock, when so converted pursuant to Maplesville Stock as set forth in Section 2.1(c3.1(a) shall no longer be outstanding and shall automatically be canceled and retired and of this Agreement shall cease to exist, be outstanding and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented representing any such shares of Malvern Common Maplesville Stock shall cease to have any rights with respect to such Malvern Common Stock other than thereto, except the right to receive such holder’s portion of the Stock Merger Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, to receive pursuant to Section 2.5, any cash in lieu of fractional shares of First Bank SouthCrest Common Stock into which to be issued or paid in consideration therefor upon surrender of such shares of Malvern Common Stock have been converted together certificate in accordance with the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e).
(e) Without limiting the other provisions 4.1 of this Agreement and subject to Sections 6.2(d) and (e)Agreement, if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such changeinterest.
Appears in 1 contract
Conversion of Shares. Subject to the provisions of this Article 2, at At the Effective Time, by virtue of the Merger Merger, and without any action on the part of First BankParent, Malvern Merger Sub, Company or their respective shareholders, the shares holders of Malvern shall be converted as followsany of the following securities:
(a) Each share of capital stock common stock, $.01 par value, of First Bank Company ("COMPANY COMMON STOCK") issued and outstanding immediately prior to before the Effective Time (excluding (i) shares of Company Common Stock, if any, held by Persons who have not voted such shares for approval of the Merger and with respect to which such Persons shall remain issued have perfected dissenters' rights in accordance with Delaware Law ("COMMON DISSENTING SHARES"), (ii) those held in the treasury of Company, and outstanding from (iii) those owned by any wholly owned Subsidiary of Company) and after all rights in respect thereof, shall, forthwith cease to exist in accordance with Delaware law and be exchanged for 2.10 (the Effective Time"EXCHANGE RATIO") common shares of Parent ("PARENT COMMON SHARES") (and cash in lieu of fractional shares pursuant to Section 3.04).
(b) Each share of Malvern Common Stock (i) Class B Preferred Stock, $.01 par value, of Company ("CLASS B PREFERRED STOCK") and (ii) Class C Preferred Stock, $.01 par value, of Company ("CLASS C PREFERRED STOCK" and, together with the Class B Preferred Stock, the "COMPANY PREFERRED STOCK") issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to before the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Company Preferred Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that immediately prior to the Effective Time represented shares of Malvern Common Stock shall cease to have any rights with respect to such Malvern Common Stock other than the right to receive the Stock Consideration and Per Share Cash Consideration in accordance with Article 3, including the right, if any, held by Persons who have not voted such shares for approval of the Merger and with respect to receive pursuant to Section 2.5, cash in lieu of fractional shares of First Bank Common Stock into which such shares of Malvern Common Stock Persons shall have been converted perfected dissenters' rights in accordance with Delaware Law ("PREFERRED DISSENTING SHARES" and, together with the amountsCommon Dissenting Shares, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e"DISSENTING SHARES").
(e) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e), if at any time during the period between the date of this Agreement and the Effective Time, Malvern should (i) split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution those held in shares the treasury of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock)Company, and (iii) engage in a reclassification, reorganization, recapitalization or exchange or other like change, or (iv) issue additional shares those owned by any wholly owned Subsidiary of Malvern Common Stock or any Equity Right for Malvern Common Stock, other than upon the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunderCompany), the Merger Consideration shall be equitably and proportionately adjustedall rights in respect thereof (including, if necessary and without duplicationlimitation, any rights to reflect fully the effect of any such change.accrued but unpaid dividends), shall
Appears in 1 contract
Conversion of Shares. Subject to (a) At the provisions of this Article 2, at the First Effective Time, by virtue of the First Merger and without any further action on the part of First BankParent, Malvern or their respective shareholdersMerger Subs, the shares Company, any Company Stockholder, or any stockholder of Malvern shall be converted as followsParent:
(ai) Each share any shares of capital Company Common Stock held as treasury stock or held or owned by the Company or any wholly owned Subsidiary of First Bank issued and outstanding the Company immediately prior to the First Effective Time shall remain issued and outstanding from and after the Effective Time.
(b) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time that is held by Malvern, any wholly owned Malvern Subsidiary, by First Bank or any First Bank Subsidiary (in each case other than shares held in any Malvern Benefit Plans or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the “Canceled Shares”) shall be treated pursuant to Section 2.4.
(c) Each share of Malvern Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares) shall be converted into the right to receive, without interest, (i) 0.7733 shares (the “Exchange Ratio”) of First Bank Common Stock (the “Stock Consideration”) and (ii) $7.80 in cash (the “Per Share Cash Consideration,” and together with the Stock Consideration, the “Merger Consideration”); provided, however, the Merger Consideration may be reduced as provided by Section 8.2(f).
(d) All shares of Malvern Common Stock, when so converted pursuant to Section 2.1(c) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) each holder share of a certificate (a “Certificate”) or book-entry share (a “Book-Entry Share”) registered in the transfer books of Malvern that Company Common Stock outstanding immediately prior to the First Effective Time represented (excluding shares of Malvern Common Stock to be canceled pursuant to Section 1.6(a)(i) and excluding Dissenting Shares) shall cease to have any rights with respect to such Malvern Common Stock other than be automatically converted solely into the right to receive the following: (1) a number of Parent Common Stock Consideration and Per Share Cash Consideration in accordance with Article Payment Shares equal to the Parent Closing Common Stock Payment Shares Exchange Ratio as set forth on the Allocation Certificate; (2) a number of Parent Preferred Stock Payment Shares equal to the Parent Closing Preferred Stock Payment Shares Exchange Ratio as set forth on the Allocation Certificate; (3, including ) if any Holdback Shares are issued by Parent to the right, if any, to receive Company Stockholders pursuant to Section 2.51.13 or any other provision of this Agreement, a number of such Holdback Shares equal to the Holdback Shares Exchange Ratio; and (4) if any Contingent Merger Consideration is required to be paid or provided by or on behalf of Parent pursuant to, and in accordance with, this Agreement (including, without limitation, Section 1.16), a portion of such Contingent Merger Consideration equal to the Contingent Merger Consideration Exchange Ratio.
(b) No fractional shares of Parent Common Stock or Parent Convertible Preferred Stock shall be issued, no certificates or scrip for any such fractional shares shall be issued, and no cash payment in lieu of any fractional shares share shall be paid in connection with the First Merger. Any fraction of a share of Parent Common Stock or Parent Convertible Preferred Stock shall be rounded down to the nearest whole number.
(c) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Subs, the Company, any Company Stockholder, or any stockholder of Parent, each share of common stock of First Bank Common Stock Merger Sub issued and outstanding immediately prior to the First Effective Time shall be converted into which and exchanged for one (1) share of common stock of the First Step Surviving Corporation. If applicable, each stock certificate of First Merger Sub evidencing ownership of any such shares shall, as of the First Effective Time, evidence ownership of such shares of Malvern Common Stock have been converted together with common stock of the amounts, if any, payable pursuant to Section 3.1(d) and subject to Section 3.1(e)First Step Surviving Corporation.
(ed) Without limiting the other provisions of this Agreement and subject to Sections 6.2(d) and (e)If, if at any time during the period between the date of this Agreement and the Effective Timedate that any Parent Common Stock Payment Shares, Malvern should (i) any Parent Preferred Stock Payment Shares, or any Holdback Shares, as the case may be, are issued by Parent pursuant to this Agreement, the outstanding shares of Parent Common Stock or Parent Convertible Preferred Stock, as applicable, shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combine or otherwise reclassify the shares of Malvern Common Stock, (ii) make a dividend or other distribution in shares of Malvern Common Stock (including any dividend or other distribution of securities convertible into Malvern Common Stock), (iii) engage in a reclassification, reorganization, recapitalization combination or exchange of shares or other like change, or (iv) issue additional shares of Malvern any such Parent Common Stock Payment Shares, any such Parent Preferred Stock Payment Shares, or any Equity Right for Malvern Common Stocksuch Holdback Shares, other than upon as the exercise of any Malvern Stock Options outstanding on the date hereof, then (without limiting any other rights of First Bank hereunder), the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplicationcase may be, to be issued by Parent pursuant to this Agreement shall, to the extent necessary, be proportionally and equitably adjusted to reflect fully such change to the effect extent necessary to provide the holders of any such Parent Common Stock Payment Shares, the holders of any such Parent Preferred Stock Payment Shares, or the holders of any such Holdback Shares, as the case may be, to be issued by Parent pursuant to this Agreement with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change. No adjustment shall be made pursuant to this Section 1.6(d) with respect to any Holdback Shares to be issued by Parent pursuant to this Agreement if such adjustment would be duplicative of any adjustment with respect to such Holdback Shares pursuant to the terms of the Certificate of Designation.
(e) At the Second Effective Time, by virtue of the Second Merger and without any action on the part of Parent, the First Step Surviving Corporation, Second Merger Sub or their respective stockholders or members, each share of the First Step Surviving Corporation issued and outstanding immediately prior to the Second Effective Time shall be canceled and extinguished without any conversion thereof and no payment or distribution shall be made with respect thereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Leap Therapeutics, Inc.)
