Conversion of Shares. (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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto; (ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest; (iii) each share of the 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; (iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time; (v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and (vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto. (b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 6 contracts
Samples: Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc)
Conversion of Shares. (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 CompanyCompany or Parent:
(i) any shares of Company Common Capital Stock held as treasury stock by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), or owned by Parent, Merger Sub, and Sub or any other wholly-owned Subsidiary of Parent, Parent or the Company immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Capital Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i) and not described in Section 2.6(a)(i) excluding Dissenting Shares), after giving effect to the Preferred Stock Conversion, shall be automatically be converted solely into the right to receive the a number of shares of Parent Common Stock Per Share Amount, without interest;equal to the Exchange Ratio (the “Merger Consideration”).
(iiib) each 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 use commercially reasonable efforts to take all actions that may be reasonably 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 its terms.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, no certificates or scrip for any such fractional shares shall be issued and no cash shall be paid for any such fractional shares. Any fractional shares of Parent Common Stock that a holder of Company Capital Stock would otherwise be entitled to receive shall be aggregated with all fractional shares of Parent Common Stock issuable to such holder and any remaining fractional shares shall be rounded up to the nearest whole share.
(d) All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.5(a).
(e) All Company Warrants outstanding immediately prior to the Effective Time shall be treated in accordance with Section 5.5(c).
(f) Each share of the common stock, $0.01 0.001 par value per share, of Merger Sub 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, $0.001 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;.
(ivg) subject to Section 2.6(b)If, each Vested Company Option outstanding between the time of calculating the Exchange Ratio and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Parent Common Stock associated with such exercise shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change, the holder Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Capital Stock, Parent Common Stock, Company Options and Company Warrants with the same economic effect as contemplated by this Agreement prior to such Vested 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 Option shall be entitled or Parent to receive, take any action with respect to each share of Company Capital Stock or Parent Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoStock, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 5 contracts
Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Conversion of Shares. (a) At the Effective Time, except as otherwise provided herein and subject to Section 2.06(b), each share of Company Common Stock, issued and outstanding immediately prior to the Effective Time (other than the shares of Company Common Stock owned by IHK, Merger Sub or any of their Subsidiaries or held in the treasury of the Company, all of which shall be canceled and cease to exist, without consideration being payable therefore (the "Excluded Shares"), shall, by virtue of the Merger and and, except as provided in Section 2.11, without any further action on the part of Parentthe holder thereof, Merger Subbe converted into, exchanged for and represent the Company or any stockholder of right to receive (without interest), subject to the Company:
proration procedures described below, either (i) the Stock Consideration (as defined below) or (ii) cash in an amount equal to the Offer Price ("Cash Consideration" and, together with the Stock Consideration, the "Merger Consideration")); provided, however, that, in any event, if between the date of this Agreement and the Effective Time the outstanding shares of IHK Common Stock or Company Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Cash Consideration and the Stock Consideration shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. All shares of Company Common Stock held by so converted or exchanged shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate previously evidencing any such shares shall thereafter represent the Companyright to receive, upon the surrender of such certificate in accordance with the provisions of Section 2.11, only the applicable Merger Consideration and any whollycash to be paid in lieu of fractional shares of IHK Common Stock and associated fractional rights ("IHK Purchase Rights") to purchase one one-owned Subsidiary hundredth of a share of Series A Junior Participating Preferred Stock, without par value, of IHK ("IHK Junior Preferred Stock") pursuant to the Company Rights Agreement, dated as of September 14, 1989, as amended (or held in the Company’s treasury"IHK Rights Agreement"), Parentbetween IHK and The Bank of New York, Merger Subas rights agent, and any other wholly-owned Subsidiary to which such holder is entitled pursuant to Section 2.10(e) (without interest thereon). The holders of Parent, such certificates previously evidencing such shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided herein or by law. IHK shall prepare a statement setting forth the calculations required or otherwise contemplated by this Section 2.06 in reasonable detail prior to the Closing Date and shall furnish a copy thereof to the Company.
(b) Notwithstanding anything in this Agreement to the contrary, the number of shares of Company Common Stock (the "Cash Election Number") to be cancelled converted into the right to receive the Cash Consideration in the Merger shall be equal to 70% of the number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time less the sum of (i) the number of Dissenting Shares (as hereinafter defined) and (ii) the number of Excluded Shares.
(c) In the event that the aggregate number of shares in respect of which Cash Elections (as defined below) have been made (the "Cash Election Shares") exceeds the Cash Election Number, each share of Company Common Stock in respect of which a Cash Election has not been made shall be converted into the right to receive the Stock Consideration, and each of the Cash Election Shares shall be converted into the right to receive the Stock Consideration or the Cash Consideration in the following manner:
(i) A proration factor (the "Proration Factor") shall be determined by dividing the Cash Election Number by the total number of Cash Election Shares.
(ii) The number of Cash Election Shares as to which each stockholder who made a Cash Election shall be converted into the right to receive the Cash Consideration (on a consistent basis among stockholders who made a Cash Election pro rata to the number of shares as to which they made such elections) shall be equal to the product of the Proration Factor multiplied by the total number of Cash Election Shares beneficially owned by such stockholder.
(iii) Subject to Section 2.10(e), each Cash Election Share other than those shares that shall receive the Cash Election Amount in accordance with Section 2.06(c)(ii), shall be converted into the right to receive the Stock Consideration.
(d) Subject to Section 2.10(e), if the number of Cash Election Shares is less than the Cash Election Number, then:
(i) Each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(ii) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time other than Cash Election Shares, the shares of Company Common Stock to be canceled in accordance with Section 2.06(e) and Dissenting Shares (the "Eligible Shares"), shall be converted into the right to receive the Cash Consideration or the Stock Consideration in the following manner:
(A) The number of Eligible Shares to be converted into the right to receive the Cash Consideration shall be equal to the excess of the Cash Election Number over the number of Cash Election Shares (which shall be allocated on a basis consistent among all stockholders who beneficially own Eligible Shares pro rata to the number of Eligible Shares beneficially owned by each such stockholder).
(B) Each other Eligible Share shall be converted into the right to receive the Stock Consideration.
(e) At the Effective Time, each Excluded Share shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 5 contracts
Samples: Merger Agreement (Savannah Foods & Industries Inc), Merger Agreement (Imperial Holly Corp), Merger Agreement (Imperial Holly Corp)
Conversion of Shares. (a) At Each share of Company Common Stock issued and outstanding immediately before the Effective Time (other than those held in the treasury of the Company) and all rights in respect thereof, shall at the Effective Time, by virtue of the Merger and without any further action on the part of Parentany holder thereof, Merger Subforthwith cease to exist and be converted into and become exchangeable for, 1.9975 shares of common stock, par value $0.0001 per share (“Novume Common Stock”), of Novume, and each share of Series A Cumulative Convertible Redeemable Preferred Stock (“Company Preferred Stock”) of the Company issued and outstanding immediately before the Effective Time and all rights in respect thereof, shall 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. shares of Series A Cumulative Convertible Redeemable Preferred Stock (“Novume Preferred Stock”), of Novume (collectively, the “Company or any stockholder of the Company:
(i) any shares Merger Consideration”, and such ratio of Company Common Stock held by to Novume Common Stock and Company Preferred Stock to Novume Preferred Stock being herein referred to as the Company, any wholly-owned Subsidiary “Company 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 Company treatment of fractional shares that would otherwise be issued, see Section 2.7.
(or b) Each share of Brekford Common Stock issued and outstanding immediately before the Effective Time (other than those held in the Company’s treasurytreasury of Brekford) and all rights in respect thereof, shall at the Effective Time, without any action on the part of any holder thereof, forthwith cease to exist and be converted into and become exchangeable for the right to receive 1/15th of one share (the “Brekford Exchange Ratio”) of Novume Common Stock (the “Brekford Merger Consideration”). Fractional shares of Novume Common Stock will not be issued in connection with the Brekford Merger. For a discussion of the treatment of fractional shares that would otherwise be issued, Parentsee Section 2.7.
(c) Commencing immediately after the Effective Time, Merger Sub, and any other wholly-owned Subsidiary of Parenteach certificate which, immediately prior to the Effective Time shall be cancelled without any conversion thereof Time, represented issued and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share outstanding shares of Company Common Stock outstanding immediately prior to or Company Preferred Stock (together, “Company Shares”) or Brekford Common Stock (“Brekford Shares” and, together with the Effective Time and not described in Section 2.6(a)(i) Company Shares, the “Shares”), shall automatically be converted into evidence the right to receive the Common Stock Per Share AmountCompany Merger Consideration or the Brekford Merger Consideration, without interest;
(iii) each share of as the common stockcase may be, $0.01 par value per shareon the basis hereinbefore set forth, of Merger Sub outstanding immediately prior but subject to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as limitations set forth in Section 3.6Sections 2.3, and/or (ii) the rights (whether options2.5, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.62.7, the consideration to be delivered in respect of a share of Company Common Stock 2.8 and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate2.9 hereof.
Appears in 4 contracts
Samples: Merger Agreement (KeyStone Solutions, Inc.), Merger Agreement (Brekford Corp.), Merger Agreement (Brekford Corp.)
Conversion of Shares. (a) At Subject to Sections 1.9, 1.10 and 1.12, 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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the number of shares of Parent Common Stock Per Share Amountequal to the Exchange Ratio; provided, without interestthat, at the Closing, with respect to each Company Stockholder entitled to receive shares of Parent Common Stock pursuant to this Section 1.5(a)(i), the Escrow Percentage of the aggregate number of shares of Parent Common Stock being issued to such Company Stockholder, rounded down to the nearest whole number of shares, shall be withheld and placed in the Escrow Fund in accordance with Section 1.12 and the Escrow Agreement;
(ii) each share of Company Series A Preferred Stock (if any) outstanding immediately prior to the Effective Time shall be converted into the right to receive the number of shares of Parent Series D-1 Preferred Stock equal to the Exchange Ratio; provided, that, at the Closing, with respect to each Company Stockholder entitled to receive shares of Parent Series D-1 Preferred Stock pursuant to this Section 1.5(a)(ii), the Escrow Percentage of the aggregate number of shares of Parent Series D-1 Preferred Stock being issued to such Company Stockholder, rounded down to the nearest whole number of shares, shall be withheld and placed in the Escrow Fund in accordance with Section 1.12 and the Escrow Agreement;
(iii) each share of Company Series B Preferred Stock (if any) outstanding immediately prior to the Effective Time shall be converted into the right to receive the number of shares of Parent Series D-2 Preferred Stock equal to the Exchange Ratio; provided, that, at the Closing, with respect to each Company Stockholder entitled to receive shares of Parent Series D-2 Preferred Stock pursuant to this Section 1.5(a)(iii), the Escrow Percentage of the aggregate number of shares of Parent Series D-2 Preferred Stock being issued to such Company Stockholder, rounded down to the nearest whole number of shares, shall be withheld and placed in the Escrow Fund in accordance with Section 1.12 and the Escrow Agreement;
(iv) each share of Company Series C Preferred Stock (if any) outstanding immediately prior to the Effective Time shall be converted into the right to receive the number of shares of Parent Series D-3 Preferred Stock equal to the Exchange Ratio; provided, that, at the Closing, with respect to each Company Stockholder entitled to receive shares of Parent Series D-3 Preferred Stock pursuant to this Section 1.5(a)(iv), the Escrow Percentage of the aggregate number of shares of Parent Series D-3 Preferred Stock being issued to such Company Stockholder, rounded down to the nearest whole number of shares, shall be withheld and placed in the Escrow Fund in accordance with Section 1.12 and the Escrow Agreement; and
(v) each share of the common stock, $0.01 stock (with no par value per share, value) of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;.
(ivb) subject to Section 2.6(b), each Vested If any shares of Company Option Common Stock outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and 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 deemed Company, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock associated with will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder shares of such Vested Company Option shall be entitled to receive, with respect to each share of Company Parent Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder may accordingly be marked with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoappropriate legends.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Conversion of Shares. (a) At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time, together with the associated right to purchase shares of Series A Junior Participating Preferred Stock, par value $0.001 per share (individually, the "Right" and collectively, the "Rights"), issued pursuant to the Rights Agreement dated as of March 31, 1999 between the Company and US Stock Transfer Corporation, as Rights Agent (the "Rights Agreement" (other than (i) Shares together with any associated Rights held by any of the Company's subsidiaries, (ii) Shares together with any associated Rights held by Parent, GP, Acquisition or any other subsidiary of Parent and (iii) Dissenting Shares (defined herein)) shall, by virtue of the Merger and without any further action on the part of Acquisition, the Company or the holder thereof, be converted into and shall become the right to receive the Per Share Amount in cash, without interest (the "Cash Merger Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time, the 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, combination or exchange of shares, then the Cash Merger Consideration contemplated by the Merger shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.
(b) At the Effective Time, each Share, together with any associated Right, then owned by Parent, GP, Acquisition, the Company or any direct or indirect wholly-owned subsidiary of Parent, GP or Acquisition or of the Company shall, by virtue of the Merger and without any action on the part of Parent, Merger SubGP, Acquisition, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Companyholder thereof, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, be canceled and any other wholly-owned Subsidiary of Parent, immediately prior retired and will cease to the Effective Time shall be cancelled without any conversion thereof exist and no payment or distribution shall be made with respect thereto;.
(iic) subject to Sections 2.6(b), 2.8 and 2.9At the Effective Time, each share of Company Common Stock outstanding immediately prior to the Effective Time common stock of Acquisition issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and exchanged for one fully-paid and non-assessable share of common stock stock, par value $0.001 per share of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 4 contracts
Samples: Merger Agreement (Ion Beam Applications S A), Merger Agreement (Sterigenics International Inc), Merger Agreement (Ion Beam Applications S A)
Conversion of Shares. (a) At The manner and basis of converting the shares of Utah Common Stock shall be as follows:
3.1 On the Effective TimeDate, each of the 1000 shares of Delaware Common Stock owned by SYMY Utah immediately prior to the Effective Date shall, by virtue of the Merger and without any further action on the part of Parentany party, Merger Subbe cancelled and retired and all rights in respect thereof shall cease, and the Company or any stockholder stated capital of the Company:
(i) any shares of Company Common Stock held SYMY Delaware shall be reduced by the Company, any wholly-owned Subsidiary $.10 of capital applicable to such shares. SYMY Utah shall surrender the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior certificate for such shares to the Secretary of SYMY Delaware for cancellation.
3.2 On the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9Date, each share of Company Utah Common Stock issued and outstanding immediately prior to on the Effective Time and not described in Section 2.6(a)(i) Date shall automatically thereupon be converted into and exchanged for one share of Delaware Common Stock. Such conversion shall be effected without the right to receive the surrender of stock certificates or any other action, and each certificate evidencing issued and outstanding shares of Utah Common Stock Per Share Amounton the Effective Date shall thereupon become, without interest;and be deemed for all purposes to evidence the ownership of, the same number of issued and outstanding, fully paid, nonassessable shares' of Delaware Common Stock.
(iii) 3.3 On the Effective Date, each share of the common stock, $0.01 par value per share, of Merger Sub Utah Preferred Stock issued and outstanding immediately prior to on the Effective Time Date shall thereupon be converted into and exchanged for one share of common Delaware Preferred Stock. Such conversion shall be effected without the surrender of stock certificates or any other action, and each certificate evidencing issued and outstanding shares of Utah Preferred Stock on the Surviving Corporation;Effective Date shall thereupon become, and be deemed for all purposes to evidence the ownership of, the same number of issued and outstanding, fully paid, nonassessable shares' of Delaware Preferred Stock.
(iv) subject to Section 2.6(b)3.4 On and after the Effective Date, each Vested Company Option holder of a certificate evidencing issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Utah Capital Stock associated with may, but shall not be required to, surrender such exercise shall automatically be cancelled certificate to SYMY Delaware and, in consideration for upon such deemed exercise and automatic cancellationsurrender, the such holder of such Vested Company Option shall be entitled to receive, with respect to each share receive a certificate evidencing the same number of Company Common shares of Delaware Capital Stock issuable upon as the exercise number of such Vested Company Option and in full satisfaction shares of Utah Capital Stock formerly evidenced by the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoingcertificate surrendered. Until so surrendered, each Vested Company Option, and any deemed issuance certificate which evidenced shares of Company Common Utah Capital Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at on the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option Date shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything deemed for all purposes to evidence the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights ownership of the shares of capital stock Delaware Capital Stock into which such shares were converted by virtue of the Company are Merger. No service charge, brokerage commission or stock transfer tax shall be payable by any holder of shares of Utah Capital Stock in connection with the issuance of certificates evidencing shares of Delaware Capital Stock, except that, if any such certificate is to be issued in a name other than that in which the certificate surrendered for exchange is registered, it shall be a condition of such issuance that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay any transfer or other taxes required by reason of the issuance of the Delaware Capital Stock certificate in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of SYMY Delaware or its transfer agent that such tax has been paid or is not applicable. SYMY Delaware shall have the right to rely upon the stock records of SYMY Utah as set forth to the ownership of shares of Delaware Capital Stock on the Effective Date.
3.5 SYMY Utah shall not record on its books any transfer of certificates representing issued and outstanding shares of Utah Capital Stock on or after the Effective Date.
3.6 On the Effective Date, each option, warrant or right, to purchase shares of Utah Common Stock granted by SYMY Utah and outstanding on the Effective Date shall, by virtue of the Merger and without any action by any party, be converted into an option, warrant or right, as the case may be, to purchase, upon the same terms and conditions, the same number of shares of Delaware Common Stock.
3.7 As of the Effective Date, the Surviving Corporation shall reserve out of its authorized and unissued Delaware Common Stock a sufficient number of shares thereof for issuance upon exercise or conversion of the options, warrants and rights referred to in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 3 contracts
Samples: Merger Agreement (Symphony Telecom International Inc), Merger Agreement (Symphony Telecom International Inc), Merger Agreement (Symphony Telecom International Inc)
Conversion of Shares. (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 by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), but excluding for the avoidance of doubt any shares of Company Common Stock held by any Company Employee Plan or trust related thereto (other than, for the avoidance of doubt, shares of Company Common Stock reserved for issuance under any of the Company Equity Plans or the ESPP), or held, directly or indirectly, by Parent, Merger Sub, and Sub or any other wholly-wholly owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(ii) except as provided in Section 1.5(a)(i) and subject to Sections 2.6(b1.5(b), 2.8 1.7 and 2.91.8, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive an amount in cash equal to (A) $56.00 minus (B) to the Common Stock extent paid (or, in the event that the Closing Date occurs after the Pre-Closing Dividend Record Date but before the Dividend Payment Date, to the extent payable after the Closing Date), the amount per share of the Pre-Closing Dividend (such cash amount per share, as it may be adjusted further pursuant to Section 1.5(c), the “Price Per Share AmountShare”), without interest;; and
(iii) each share of the common stock, $0.01 0.001 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;.
(ivb) subject As of immediately prior to the Effective Time, without duplication of Section 2.6(b1.5(a)(ii), each Vested share of Company Option Restricted Stock on which restrictions have not yet lapsed and which is outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time (i) shall automatically be deemed exercised become fully vested (and the deemed for shares of Company Common Restricted Stock associated with such exercise subject to performance vesting criteria, based on deemed achievement of maximum performance) and all restrictions applicable thereto shall automatically lapse and (ii) shall terminate and be cancelled and, in consideration for such deemed exercise and automatic cancellation, converted into the holder of such Vested Company Option shall be entitled right to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, receive an amount in cash equal to (A) the positive resultsum of (1) the Price Per Share, if any, of plus (2) to the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance extent paid or payable to holders of Company Common Stock associated with and payable but unpaid on such share of Company Restricted Stock, the deemed exerciseamount per share of the Pre-Closing Dividend, which shall not less (B) any applicable withholding or other Taxes or other amounts required by applicable Law to be issued, shall both be cancelled at withheld (the “Restricted Share Merger Consideration”). As of the Effective Time;
(v) , each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect holder of a share of Company Common Restricted Stock and a Vested shall cease to have any rights with respect thereto, except the right to receive the Restricted Share Merger Consideration for each share of Company Option for which an Option Consent has been obtained (and accordinglyRestricted Stock, without interest, pursuant to this Section 2.61.5 and payable in accordance with Section 1.7.
(c) If, during the period commencing on the date of this Agreement and ending at the Effective Time (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 shall occur during such period, then the Price Per Share shall be adjusted downward to the extent appropriate to provide the same economic effect as appropriatecontemplated by this Agreement prior to such action.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lockheed Martin Corp), Merger Agreement (Aerojet Rocketdyne Holdings, Inc.), Merger Agreement
Conversion of Shares. (a) At the Effective TimeTime of the Merger of Liberty N2P and IDT Sub 1, by virtue of the such Merger and without any further action on the part of Parent, Merger Sub, any of the Company parties hereto or any stockholder holder of the Company:
any securities of Liberty N2P or IDT Sub 1, (i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock common stock of Liberty N2P outstanding immediately prior to the such Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the 3,268.9719 shares of Class B Common Stock Per Share AmountStock, without interest;
par value $.01 per share, of IDT Parent (iii“IDT Parent Class B Common Stock”), and (ii) each share of the common stock, $0.01 par value per share, stock of Merger IDT Sub 1 outstanding immediately prior to the such Effective Time shall automatically be converted into one share of common stock of the Surviving Corporation;Entity 1.
(ivb) subject At the Effective Time of the Merger of Liberty N2P II and IDT Sub 2, by virtue of such Merger and without any action on the part of any of the parties hereto or any holder of any securities of Liberty N2P II or IDT Sub 2, (i) each share of common stock of Liberty N2P II outstanding immediately prior to such Effective Time shall automatically be converted into the right to receive 236.3762 shares of IDT Parent Class B Common Stock, and (ii) each share of common stock of IDT Sub 2 outstanding immediately prior to such Effective Time shall automatically be converted into one share of common stock of Surviving Entity 2.
(c) At the Effective Time of the Merger of Liberty N2P III and IDT Sub 3, by virtue of such Merger and without any action on the part of any of the parties hereto or any holder of any securities of Liberty N2P III or IDT Sub 3, (i) each share of common stock of Liberty N2P III outstanding immediately prior to such Effective Time shall automatically be converted into the right to receive 249.1313 shares of IDT Parent Class B Common Stock, and (ii) each share of common stock of IDT Sub 3 outstanding immediately prior to such Effective Time shall automatically be converted into one share of common stock of Surviving Entity 3. The shares of IDT Parent Class B Common Stock issuable in the Mergers, as may be adjusted pursuant to Section 2.6(b1.02(d), each Vested Company Option outstanding are referred to herein as the “Consideration Shares.”
(d) In the event of any dividend, distribution, recapitalization, stock split or combination, or similar event with respect to or affecting the IDT Parent Class B Common Stock after the date hereof and unexercised for which an Option Consent is obtained immediately prior to the Effective Time of the Mergers, the foregoing exchange ratios shall automatically be deemed exercised and appropriately adjusted.
(e) At the deemed Effective Time of each Merger, all shares of Company common stock of Liberty N2P, Liberty N2P II and Liberty N2P III, as applicable, that have been converted into the right to receive shares of IDT Parent Class B Common Stock associated with such exercise shall be automatically be cancelled andcanceled and shall cease to exist, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option the common stock of Liberty N2P, Liberty N2P II and Liberty N2P III shall be entitled cease to receive, have any rights with respect to each share of Company Common Stock issuable upon such shares, other than the exercise of such Vested Company Option and in full satisfaction of right to receive certificates representing the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoShares exchangeable therefor.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 3 contracts
Samples: Merger Agreement (Idt Corp), Merger Agreement (Liberty Media Corp /De/), Merger Agreement (Liberty Media Corp /De/)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentBuyer, Merger SubCFC, or the Company or holder of any stockholder of the Companyfollowing securities:
(ia) any shares Each share of Company Common Stock held by Stock, $2.50 par value per share, of Buyer (the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, “Buyer Common Stock”) issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall remain issued and outstanding and shall not be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;affected by the Merger.
(iib) subject to Sections 2.6(b), 2.8 and 2.9, each share All shares of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stockStock, $0.01 par value per share, of Merger Sub CFC (the “CFC Common Stock”) issued and outstanding immediately prior to the Effective Time that are owned, directly or indirectly, by CFC or Buyer (other than Trust Account Shares and other than shares of CFC Common Stock held as a result of debts previously contracted) shall no longer be outstanding, shall automatically be cancelled, and shall cease to exist, and no Buyer Common Stock or other consideration shall be delivered in exchange therefor.
(c) Subject to Section 1.4(e), each share of CFC Common Stock, except for shares of CFC Common Stock owned by Buyer, CFC, or any of their respective wholly-owned Subsidiaries (other than Trust Account Shares and shares of CFC Common Stock held as a result of debts previously contracted), shall be converted into one share the right to receive 1.13 shares (the “Exchange Ratio”) of common stock validly issued, fully paid, and nonassessable shares of Buyer Common Stock (the “Merger Consideration”).
(d) All of the Surviving Corporation;shares of CFC Common Stock 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 CFC Common Stock shall thereafter represent only the right to receive the Merger Consideration into which the shares of CFC 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 CFC Common Stock become entitled in accordance with Section 2.2.
(ive) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which the Effective Time, there is declared (with an Option Consent is obtained immediately effective time prior to the Effective Time Time) or effected a reorganization, reclassification, recapitalization, stock split (including a reverse stock split), split-up, stock dividend or stock distribution (including any dividend or distribution of securities convertible into Buyer Common Stock or CFC Common Stock), combination, exchange, or readjustment of shares with respect to, or rights issued in respect of, Buyer Common Stock or CFC Common Stock, the Exchange Ratio shall automatically be deemed exercised and proportionately adjusted accordingly to provide to the deemed holders of CFC 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 Company Buyer Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company or CFC Common Stock issuable upon pursuant to any dividend reinvestment plan or direct investment plan of Buyer or CFC, as applicable, pursuant to the exercise of such Vested Company Option and in full satisfaction stock options awarded under any director, employee or affiliate stock option plans of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubtBuyer or CFC, as a result applicable, or their Subsidiaries, or upon the grant or sale of shares or rights to receive shares to or for the foregoingaccount of any director, each Vested Company Optionemployee, and or Affiliate of Buyer or CFC, as applicable, or any deemed of their Subsidiaries pursuant to any stock option or other compensation or benefit plans of Buyer or CFC, as applicable, or in connection with the issuance of Company Common Stock associated shares as consideration in a transaction where Buyer or CFC, as applicable, is the surviving corporation or in connection with the deemed exerciseany offering of shares where Buyer or CFC, which shall not be issuedas applicable, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised receives consideration in exchange for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateso offered.
Appears in 3 contracts
Samples: Merger Agreement (Carolina Financial Corp), Merger Agreement (United Bankshares Inc/Wv), Merger Agreement (Carolina Financial Corp)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Company, Parent, Merger Sub, the Company Sub or any stockholder holder of capital stock of any of them, subject to the Companylimitations contained herein:
(ia) any shares Subject to Section 1.06, each share of Company Common Stock held by the Company, any wholly-owned Subsidiary common stock of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of "Company Common Stock outstanding immediately prior to the Effective Time Stock") issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be automatically converted into one the right to receive shares of fully paid and nonassessable common stock of Parent (the "Parent Common Stock") in the amount equal to the Exchange Ratio; provided, however, that of the shares of Parent Common Stock to be issued hereunder, 240,000 of such shares (the "Escrowed Shares") shall be held in an escrow account pursuant to an escrow agreement, the form of which is attached hereto as Exhibit E (the "Escrow Agreement"), for indemnification purposes. The Escrowed Shares shall be apportioned among the holders of Company Common Stock in accordance with their pro rata portion of the aggregate shares of Company Common Stock. By approving this Agreement at a vote of shareholders of the Company or by written consent, such shareholders agree (i) to the terms of the Escrow Agreement, (ii) to the appointment of Ladin as their representative for purposes of the Escrow Agreement, (iii) that the Escrow Agreement cannot be terminated or amended without the prior written consent of Parent, except as provided in the Escrow Agreement and (iv) to the indemnification provisions contained in Section 11.01 herein. The shares of Parent Common Stock shall be issued to the Company's shareholders as set forth on Schedule 1.04(a).
(b) Each Company Incentive Stock Option outstanding immediately prior to the Effective Time shall be exchanged for an option to purchase Parent Common Stock in the amount of the Exchange Ratio (the "Parent Incentive Stock Options") under a substantially similar Incentive Stock Option Plan to be adopted by Parent prior to Closing, and each Company Incentive Stock Option shall be deemed to be canceled as of the Closing Date. The Parent Incentive Stock Options shall be issued as set forth on Schedule 1.04(b).
(c) Each Company Non-Qualified Stock Option outstanding immediately prior to the Effective Time shall be exchanged for an option to purchase Parent Common Stock in the amount of the Exchange Ratio (the "Parent Nonqualified Stock Options", and together with the Parent Incentive Stock Options, the "Parent Options") under a substantially similar Non-Qualified Stock Option Plan to be adopted by Parent prior to Closing, and each Company Non-Qualified Stock Option shall be deemed canceled as of the Closing Date. The Parent Non-Qualified Stock Options shall be issued as set forth on Schedule 1.04(c).
(d) Each share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option Merger Sub issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised converted into and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each become one share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation.
Appears in 3 contracts
Samples: Merger Agreement (Smith Jack T), Merger Agreement (Ladin William E Jr), Merger Agreement (Palmer J N Family Partnership)
Conversion of Shares. (a) At As of 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:
(ia) any shares of Company Common Stock All Shares that are held by in the Company, any wholly-owned Subsidiary treasury of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any Shares owned by Investor, Sub or any other wholly-wholly owned Subsidiary (as hereinafter defined) of Parent, immediately prior to the Effective Time Investor shall be cancelled without any conversion thereof canceled and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor.
(iib) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Common Stock to be canceled in accordance with Section 3.1(a) and not described in Section 2.6(a)(iother than Dissenting Company Shares (as hereinafter defined)) shall automatically be converted into the right to receive from the Surviving Corporation in cash, without interest, the Common Stock Per Share AmountOffer Price, without interest;interest (the "Common Stock Merger Consideration"). All such shares of Common Stock, when so converted, shall no longer be outstanding and shall automatically be canceled and retired and each holder of a certificate or certificates (the "Common Stock Certificates") representing any such shares of Common Stock shall cease to have any rights with respect thereto, except the right to receive the Common Stock Merger Consideration.
(iiic) each share Each Share of the common stock, $0.01 par value per share, of Merger Sub Exchangeable Preferred issued and outstanding immediately prior to the Effective Time (other than shares of Exchangeable Preferred to be canceled in accordance with Section 3.1(a) and other than Dissenting Company Shares) shall be converted into one the right to receive from the Surviving Corporation in cash, without interest, the Exchangeable Preferred Offer Price, without interest (the "Exchangeable Preferred Merger Consideration" and, together with the Common Stock Merger Consideration, the "Merger Consideration"). All such shares of Exchangeable Preferred, when so converted, shall no longer be outstanding and shall automatically be canceled and retired and each holder of a certificate or certificates (the "Exchangeable Preferred Certificates" and, together with the Common Stock Certificates, the "Certificates") representing any such shares shall cease to have any rights with respect thereto, except the right to receive the Exchangeable Preferred Merger Consideration.
(d) Each share of common stock of the Surviving Corporation;
stock, par value $.01 per share (iv) subject to Section 2.6(beach a "Sub Share"), each Vested Company Option of Sub, issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andshall, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction by virtue of the rights Merger and without any action on the part of the holder with respect theretothereof, an amount in cash equal to be converted into and become at the positive resultEffective Time one fully paid and nonassessable share of common stock, if anypar value $.01 per share, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoSurviving Corporation.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Prometheus Senior Quarters LLC), Agreement and Plan of Merger (Prometheus Senior Quarters LLC), Agreement and Plan of Merger (Kapson Senior Quarters Corp)
Conversion of Shares. (a) At Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubPurchaser, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock and Company Preferred Stock held by the Company, Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Effective Time (or held in the Company’s treasury)) shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock and Company Preferred Stock held by Parent, Merger Sub, and Purchaser or any other wholly-owned Subsidiary of Parent, Parent as of immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii)” above: (A) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(other than any Dissenting Common Shares) shall automatically be converted into the right to receive the Common Offer Price, and (B) each share of Series C Preferred Stock Per Share Amount, without interest;outstanding immediately prior to the Effective Time (other than any Dissenting Preferred Shares) shall be converted into the right to receive a cash sum equal to 1,724.04 times the Offer Price (the “Preferred Stock Merger Consideration”); and
(iiiiv) each share of the common stock, $0.01 par value per share, of Merger Sub Purchaser outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;.
(ivb) subject If, during the period from the date of this Agreement through the Effective Time, 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 and a record date with respect to any such event shall occur during such period, then the Offer Price shall be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.6(b)1.8(b) shall be deemed to permit or authorize any party hereto to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(c) Notwithstanding anything to the contrary set forth in this Agreement, each Vested all shares of Company Option Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time and held by a stockholder of the Company who (A) is entitled to and has demanded appraisal for such shares in accordance with Section 262 of the DGCL, (B) has properly complied with Section 262 of the DGCL, and (C) has not effectively withdrawn or lost its rights to appraisal (“Dissenting Common Shares”) shall automatically not be converted into, or represent the right to receive, the Offer Price pursuant to this Section 1.8. By virtue of the Merger, all Dissenting Common Shares shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under Section 262 of the DGCL; provided, however, that notwithstanding the foregoing, all Dissenting Common Shares held by a stockholder of the Company who shall have failed to perfect, effectively withdrawn or lost or been deemed by a court of competent jurisdiction to not be entitled to such stockholder’s right to appraisal under such Section 262 of the DGCL shall thereupon be deemed exercised to have been converted into, and to have become exchangeable for, the deemed right to receive the Offer Price pursuant to Section 1.8(a), without any interest thereon, upon surrender of the Common Stock Certificate(s) or non-certificated shares of Company Common Stock associated with represented by book entry (“Common Book Entry Shares”) that formerly evidenced such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon in the exercise manner set forth in Section 1.10. The Company shall give Parent (i) prompt notice of, together with copies of, any demand received by the Company for payment of the fair value of any Company Common Stock, withdrawals of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Optiondemands, and any deemed issuance other instruments received by the Company as part of any such demand for dissenter’s rights and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for dissenter’s rights under Delaware law in respect of Dissenting Common Shares. The Company Common Stock associated shall not, except with the deemed exerciseprior written consent of Parent, which shall not be issued, shall both be cancelled at the Effective Time;voluntarily make any payment with respect to any demands for appraisal rights or settle or offer to settle or compromise any such demands for payment in respect of Dissenting Common Shares.
(vd) each Vested Company Option Notwithstanding anything to the contrary set forth in this Agreement, all shares of Series C Preferred Stock issued and outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time and held by a stockholder of the Company who (A) is entitled to and has demanded appraisal for such shares in accordance with Section 262 of the DGCL, (B) has properly complied with Section 262 of the DGCL, and (C) has not effectively withdrawn or lost its rights to appraisal (“Dissenting Preferred Shares”) shall automatically not be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelledconverted into, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything represent the right to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Considerationreceive, the maximum aggregate consideration to be paid Preferred Stock Merger Consideration pursuant to this Section 2.6 is $29,302,0001.8. If (i) the number, type and rights By virtue of the shares Merger, all Dissenting Preferred Shares shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under Section 262 of capital stock the DGCL; provided, however, that notwithstanding the foregoing, all Dissenting Preferred Shares held by a stockholder of the Company are who shall have failed to perfect, effectively withdrawn or lost or been deemed by a court of competent jurisdiction to not as be entitled to such stockholder’s right to appraisal under such Section 262 of the DGCL shall thereupon be deemed to have been converted into, and to have become exchangeable for, the right to receive the Preferred Stock Merger Consideration pursuant to Section 1.8(a), without any interest thereon, upon surrender of the Preferred Stock Certificate(s) or non-certificated shares of Series C Preferred Stock represented by book entry (the “Preferred Book Entry Shares” and, together with the Common Book Entry Shares, the “Book Entry Shares”) that formerly evidenced such shares of Series C Preferred Stock in the manner set forth in Section 3.61.10. The Company shall give Parent (i) prompt notice of, and/or together with copies of, any demand received by the Company for payment of the fair value of any Series C Preferred Stock, withdrawals of such demands, and any other instruments received by the Company as part of any such demand for dissenter’s rights and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for dissenter’s rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered under Delaware law in respect of a share Dissenting Preferred Shares. The Company shall not, except with the prior written consent of Company Common Stock and a Vested Company Option Parent, voluntarily make any payment with respect to any demands for which an Option Consent has been obtained (and accordingly, pursuant appraisal rights or settle or offer to Section 2.6) shall be adjusted downward as appropriatesettle or compromise any such demands for payment in respect of Dissenting Preferred Shares.
Appears in 3 contracts
Samples: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Innoviva, Inc.)
Conversion of Shares. (a) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger SubSubs, the Company or any stockholder of the Company:
(i) any shares of Company Common Capital Stock then held by the Company, any wholly-owned Subsidiary of the Company (“Shares”) (or held in the Company’s treasury)) immediately prior to the First Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Capital Stock then held by Parent, Merger Sub, and Subs or any other wholly-owned Subsidiary of Parent, Parent immediately prior to the First Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iiiii) except as provided in subsections “(a)(i)” and “(a)(ii)” of this Section 1.5 (Conversion of Shares) and subject to Sections 2.6(b1.9 (Exchange/Payment), 2.8 and 2.9, each share of Company Common Stock issued and outstanding immediately prior to the First Effective Time shall cease to be an existing and not described in Section 2.6(a)(i) issued share of Company Common Stock, and shall automatically be converted converted, by virtue of the First Merger and without any action on the part of the holders thereof, into the right to receive the a number of validly issued, fully paid and nonassessable shares of Parent Common Stock Per Share Amount, without interest;equal to the Exchange Ratio. The shares of Parent Common Stock to be issued upon conversion of the Company Common Stock pursuant to this Section 1.5 (c) is referred to as the “Merger Consideration”; and
(iiiiv) each share of the common stock, $0.01 par value per share, of First Merger Sub issued and outstanding immediately prior to the First Effective Time shall be converted into one share of validly issued, fully paid and nonassessable common stock of the First Step Surviving Corporation and each stock certificate of First Merger Sub evidencing ownership of any such shares shall thereupon evidence ownership only of such shares of capital stock of the First Step Surviving Corporation;.
(ivb) No fractional shares of Parent Common Stock shall be issued in connection with the First Merger, 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 a fraction of a share of Parent Common Stock shall be entitled to receive the number of shares of Parent Common Stock to which such holder of Company Common Stock would be entitled to receive pursuant to Section 1.5 (c) aggregated and rounded up to the nearest whole share, upon surrender by such holder of a Letter of Transmittal in accordance with Section 1.9 (Exchange/Payment) and any accompanying documents as required therein
(c) If, between the date of this Agreement and the First Effective Time, (i) the outstanding shares of 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, reverse-split, combination or exchange of shares or other like change (by merger, consolidation or otherwise), or (ii) the outstanding shares of Company Capital 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, reverse-split, combination or exchange of shares or other like change (by merger, consolidation or otherwise), then in each case, the Exchange Ratio shall be appropriately and equitably adjusted to the extent necessary to provide the holders of Company Capital Stock, Company Options and Company Warrants with the same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split, reverse-split, combination or exchange of shares or other like change (by merger, consolidation or otherwise); provided, however, that nothing herein will be construed to permit the Company or Parent to take any action with respect to Company Capital Stock or Parent Common Stock, respectively, that is prohibited by the terms of this Agreement; and
(d) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date on or after the First Effective Time shall be paid to the holder of any unsurrendered Company Stock Certificate or Book-Entry Share with respect to the shares of Parent Common Stock that such holder has the right to receive in the First Merger until such holder surrenders such Company Stock Certificate or Book-Entry Share or provides an affidavit of loss or destruction in lieu thereof in accordance with Section 1.9 (Exchange / Payment) (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to Section 2.6(bthe effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(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, as applicable, each Vested Company Option share of the First Step Surviving Corporation issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Second Effective Time shall automatically be deemed exercised canceled and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, extinguished without any exercise conversion thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 3 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Conversion of Shares. (a) At the Effective Time, each share of Company Common Stock (individually a “Share” and collectively the “Shares”) issued and outstanding immediately prior to the Effective Time (other than Shares held in the Company’s treasury or by any of the Company’s subsidiaries) shall, by virtue of the Merger and without any further action on the part of ParentAREP Oil & Gas, Merger SubIPO Co., the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Companyholder thereof, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each that fraction of a fully-paid and non-assessable share of the common stock, $0.01 par value $.01 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;
IPO Co. (iv“IPO Co. Common Stock”) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of Exchange Ratio (as defined below) (the “Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoConsideration”).
(b) Notwithstanding anything to The “Exchange Ratio” shall be determined by multiplying 0.00000008936 [i.e., 1 / 11,190,650 (the contrary including number of outstanding Shares)] by the definitions Share Amount (as hereafter defined). The “Share Amount” shall mean that number of shares of IPO Co. Common Stock Per Share Amount which results in the holders of the Shares receiving, in the aggregate, a 7.990% (the “Percentage”) economic interest in the entire equity of the Enterprise (as hereafter defined) immediately prior to consummation of the IPO Transaction; provided, however, that the parties acknowledge and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If agree that: (i) the numberPercentage is based upon the assumption that the Enterprise will be subject to $500 million of net indebtedness (i.e., type and rights total indebtedness minus cash) immediately prior to or simultaneously with consummation of the shares IPO Transaction (after all incurrences and repayments of capital stock debt contemplated in Exhibit B hereto and excluding intercompany notes of the Company are not as set forth in Section 3.6, and/or members of the Enterprise and their subsidiaries); (ii) to the rights extent that the Enterprise is subject to less than $500 million of net indebtedness at such time (whether optionsafter all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the members of the Enterprise and their subsidiaries), warrants or any other rightsthe Percentage will be reduced by subtracting the Adjustment Amount (as hereafter defined) from the Percentage; and (iii) to acquire capital stock the extent that the Enterprise is subject to in excess of $500 million of net indebtedness at such time (after all incurrences and repayments of debt contemplated in Exhibit B hereto and excluding intercompany notes of the Company are not as set forth in Section 3.6members of the Enterprise and their subsidiaries), the consideration Percentage will be increased by adding the Adjustment Amount to be delivered the Percentage. The “Adjustment Amount” shall mean the product of (x) 0.6322% and (y) that fraction obtained by dividing the positive difference between $500 million and the actual net indebtedness of the Enterprise immediately prior to or simultaneously with consummation of the IPO Transaction (after all incurrences and repayments of debt contemplated in respect Exhibit B hereto and excluding intercompany notes of a share the members of Company Common Stock the Enterprise and a Vested Company Option for which their subsidiaries) by $100 million. Set forth on Schedule 1.7 hereto is an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) example of how the Percentage shall be adjusted downward as appropriatecalculated. At Closing, the remaining economic interest in the Enterprise will be held, directly or indirectly, by AREH. The term “Enterprise” shall mean a combination or consolidation of entities which includes 100% of the equity interests in each of AREP Oil & Gas, National Onshore, National Offshore and the Company.
Appears in 3 contracts
Samples: Merger Agreement (Icahn Carl C Et Al), Merger Agreement (American Real Estate Partners L P), Merger Agreement (National Energy Group Inc)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Acquisition Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock then held by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub) shall be canceled and retired and shall cease to exist, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time no consideration shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretodelivered in exchange therefor;
(ii) any shares of Company Common Stock then held by Parent, Acquisition Sub or any other wholly owned Subsidiary of Parent shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii)” above and subject to Sections 2.6(b2.5(b), 2.8 2.5(c) and 2.92.7, each share of Company Common Stock then outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share AmountAmount (the “Merger Consideration”), without interest;; and
(iiiiv) each share all of the shares of the common stock, $0.01 par value per share, of Acquisition Sub then outstanding shall be converted into a number of shares of Surviving Corporation Common Stock equal to the number of shares of Company Common Stock issued and outstanding (excluding shares cancelled pursuant to clause “(i)” above) immediately prior to the Effective Time.
(b) If, between the date of this Agreement and the Effective Time, 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 Merger Sub Consideration shall be appropriately adjusted to reflect such change or transaction.
(c) If any shares of Company Common Stock outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) are unvested or are subject to Section 2.6(b)a repurchase option, each Vested risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company Option outstanding or under which the Company has any rights, then the Merger Consideration payable with respect thereto will also be unvested and unexercised for which an Option Consent is obtained immediately prior subject to the Effective Time same repurchase option, risk of forfeiture or other condition. The Company shall automatically take all action that may be deemed exercised necessary to ensure that, from and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at after the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent , Parent is not obtained immediately prior entitled to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without exercise any exercise thereof and no payment such repurchase option or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as other right set forth in Section 3.6, and/or (ii) the rights (whether options, warrants any such restricted stock purchase agreement or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateagreement.
Appears in 3 contracts
Samples: Merger Agreement (Starbase Corp), Merger Agreement (Borland Software Corp), Merger Agreement (Borland Software Corp)
Conversion of Shares. (a) At Subject to the provisions of this ARTICLE 2, at the Effective Time, by virtue of the Merger and without any further action on the part of ParentBuyer, Merger SubSeller or the shareholders of either of the foregoing, the Company or any stockholder shares of the CompanySeller and Buyer shall be converted as follows:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time capital stock of Buyer issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one remain an issued and outstanding share of common capital stock of Buyer from and after the Surviving Corporation;Effective Time and shall not be affected by the Merger.
(ivb) subject to Section 2.6(b), each Vested Company Option Each share of Seller capital stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed that is held by Seller, any Seller Subsidiary, Buyer or any Buyer Subsidiary (in each case other than shares of Company Common Stock associated with such exercise shall automatically be cancelled and, held in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and any Employee Benefit Plans or related trust accounts or otherwise held in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v“Canceled Shares”) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option canceled and retired and shall be automatically cancelledcease to exist, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(bc) Notwithstanding anything Each share of Seller Common Stock issued and outstanding immediately prior to the contrary including Effective Time (excluding the definitions of Common Stock Canceled Shares and the Seller Dissenting Shares), subject to Section 2.3(c), shall be converted into the right to receive, without interest, the Per Share Amount and Merger Option Stock Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If .
(id) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a Each share of Company Seller Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordinglyStock, when so converted pursuant to Section 2.6) 2.1(c), shall automatically be canceled and retired and shall cease to exist as of the Effective Time, and each certificate (an “Old Certificate”, it being understood that any reference herein to “Old Certificate” shall be adjusted downward as appropriatedeemed to include reference to book-entry account statements relating to ownership of shares of Seller Common Stock (a “Book-Entry Share”)) registered in the transfer books of Seller that immediately prior to the Effective Time represented shares of Seller Common Stock shall thereafter cease to have any rights with respect to such Seller Common Stock other than the right to receive the Merger Consideration in accordance with ARTICLE 3.
Appears in 3 contracts
Samples: Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Conversion of Shares. (a) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger SubSubs, the Company or any stockholder of the CompanyCompany or Parent:
(i) any shares of Company Common Stock held as treasury stock or held or owned by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the First Effective Time shall be cancelled canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5 and Section 1.6(c), each share of Company Capital Stock outstanding immediately prior to the First Effective Time (excluding shares to be canceled pursuant to Section 1.6(a)(i) and excluding Dissenting Shares) shall be automatically converted solely into the right to receive a number of Parent Common Stock Payment Shares equal to the Exchange Ratio as set forth on the Allocation Certificate.
(b) If any shares of Company Common Stock outstanding immediately prior to the First Effective Time 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, such shares of Company Common Stock shall no longer be subject to any right of repurchase, risk of forfeiture or other such conditions.
(c) No fractional shares of Parent Common Stock and Parent Convertible Preferred Stock shall be issued in connection with the First Merger, and no certificates or scrip for any such fractional shares shall be issued and no cash shall be paid for any such fractional shares. Any fractional shares of Parent Common Stock that a holder of Company Common Stock would otherwise be entitled to receive shall be aggregated with all fractional shares of Parent Common Stock issuable to such holder) or a fraction of a share of Parent Convertible Preferred Stock issuable to such holder and any remaining fractional shares shall be rounded up to the nearest whole share.
(d) 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 or any member of the Company or stockholder of Parent, each share of common stock of First Merger Sub issued and outstanding immediately prior to the First Effective Time shall be converted into and exchanged for one 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 common stock of the First Step Surviving Corporation.
(e) If, between the date of this Agreement and the First Effective Time, the outstanding shares of Company Common Stock or Parent Common Stock or Parent Convertible Preferred 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, 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 and Parent Common Stock and Parent Convertible Preferred 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 action with respect to Company Common Stock or Parent Common Stock or Parent Convertible Preferred Stock, respectively, that is prohibited or not expressly permitted by the terms of this Agreement.
(f) 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, 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;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 3 contracts
Samples: Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)
Conversion of Shares. (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 CompanyCompany or Parent:
(i) any shares of Company Common Capital Stock held as treasury stock or held or owned by the CompanyCompany or Merger Sub, or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Capital Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i) and not described in Section 2.6(a)(iexcluding Dissenting Shares) shall be automatically be converted solely into the right to receive the a number of shares of Parent Common Stock Per Share Amountequal to the Exchange Ratio (the “Merger Consideration”).
(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 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 its terms.
(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 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.
(iiid) each All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.5.
(e) Each share of the common stock, $0.01 0.0001 par value per share, of Merger Sub 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, $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;.
(ivf) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Parent Common Stock associated with such exercise shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split (including the Reverse Split), combination or exchange of shares or other like change, the holder Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Capital Stock and Parent Common Stock with the same economic effect as contemplated by this Agreement prior to such Vested 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 Option shall be entitled or Parent to receive, take any action with respect to each share of Company Capital Stock or Parent Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoStock, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization, Merger Agreement (Aviragen Therapeutics, Inc.)
Conversion of Shares. (a) At the Effective Time, each share of the Company’s common stock, no par value (the “Common Stock”), issued and outstanding immediately prior to the Effective Time (other than shares of Common Stock to be cancelled pursuant to Section 3.1(c) 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 $5.15 in cash (the “Merger Consideration”) without any interest thereon.
(b) Each share of common stock, no par value, of Sub issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Subbe converted into one fully paid and nonassessable share of the common stock, no par value, of the Surviving Corporation.
(c) All shares of Common Stock that are owned by the Company or any stockholder of the Company:
(i) as treasury stock and any shares of Company Common Stock held owned by the CompanyParent, Sub or any other direct or indirect wholly-owned Subsidiary of Parent or the Company (or held in shall, at the Company’s treasury)Effective Time, Parent, Merger Subbe cancelled and retired and shall cease to exist, and any other wholly-owned Subsidiary of Parent, immediately prior to no consideration shall be delivered in exchange therefor.
(d) At the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9Time, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share AmountMerger Consideration without any interest thereon pursuant to Section 3.1(a) shall be automatically cancelled and shall cease to exist, without interest;
(iii) each share of and the common stock, $0.01 par value per share, of Merger Sub outstanding holders immediately prior to the Effective Time shall be converted into one share of common stock shares of outstanding Common Stock not represented by certificates (“Book-Entry Shares”) and the Surviving Corporation;
(iv) subject to Section 2.6(b)holders of certificates that, each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed Time, represented shares of Company outstanding Common Stock associated (the “Certificates”) shall cease to have any rights with respect to such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, shares of Common Stock other than the holder of such Vested Company Option shall be entitled right to receive, upon surrender of such Book-Entry Shares or Certificates in accordance with respect to Section 3.2, the Merger Consideration, without any interest thereon, for each such share of Company Common Stock issuable upon held by them.
(e) If at any time between the exercise date of such Vested Company Option this Agreement and the Effective Time any change in full satisfaction the number of the rights outstanding shares of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, Common Stock shall occur as a result of the foregoinga reclassification, each Vested Company Optionrecapitalization, and stock split (including a reverse stock split), or combination, exchange or readjustment of shares, or any deemed issuance of Company Common Stock associated stock dividend or stock distribution with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Considerationrecord date during such period, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights amount of the shares of capital stock of the Company are not Merger Consideration as set forth provided in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.63.1(a) shall be equitably adjusted downward as appropriateto reflect such change.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Conversion of Shares. (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 Companyholder thereof:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described shall, except as otherwise provided in Section 2.6(a)(i) shall automatically 2.2(a)(vii), be converted into the right to receive an amount in cash equal to the Merger Consideration, payable in cash upon surrender of the certificate that formerly evidenced such share of Company Common Stock Per Share Amount(a “Certificate”) in the manner provided in Section 2.3;
(ii) each outstanding and unexercised option to purchase shares of Company Common Stock (the “Company Options”) under any stock option plan of the Company, including, without interest;limitation, the Company’s 1998 and 2005 Stock Option Plans or any other similar plan, agreement or arrangement outstanding immediately prior to the Effective Time, shall be cancelled and, in exchange therefore, each former holder of any such Company Option shall be entitled to receive a payment in cash (subject to any applicable withholding of Taxes) of an amount equal to the product of (i) the total number of shares of Company Common Stock previously subject to such Company Option which have vested as of the Effective Time, and (ii) the excess, if any, of the Merger Consideration over the exercise price per share previously subject to such Company Option (such amounts payable hereunder being referred to as the “Option Payments”). From and after the Effective Time, any such Company Option shall no longer be exercisable by the holder thereof but shall only entitle such holder to the payment of the Option Payment. If the exercise price per share with respect to any Company Option is equal to or greater than the Merger Consideration, such Company Option will be cancelled pursuant to this Section 2.2(a)(ii) without consideration, as will that portion of any Company Option that has not vested as of the Effective Time.
(iii) each share of the common stock, $0.01 par value $.01 per share, of Merger Sub Buyer (“Buyer Common Stock”) outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving CorporationCorporation with the same rights, powers and privileges as the share so converted;
(iv) subject to Section 2.6(b)each share of Series A Preferred Stock, each Vested Company Option par value $0.01 per share, of Buyer (“Buyer Series A Preferred Stock”) outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised converted into and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each become one share of Company Common Series A Preferred Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated Surviving Corporation with the deemed exercisesame rights, which shall not be issued, shall both be cancelled at powers and privileges as the Effective Timeshare so converted;
(v) each Vested Company Option share of Series B Preferred Stock, par value $0.01 per share, of Buyer (“Buyer Series B Preferred Stock”) outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; andconverted into and become one share of Series B Preferred Stock of the Surviving Corporation with the same rights, powers and privileges as the share so converted;
(vi) each share of Buyer Common Stock, Buyer Series A Preferred Stock and Buyer Series B Preferred Stock converted pursuant to Sections 2.2(a)(iii), 2.2(a)(iv) and 2.2(a)(v), as applicable, shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and
(vii) each share of Company Option that is not a Vested Common Stock held by the Company Option as treasury stock immediately prior to the Effective Time and each of the Rollover Shares shall be automatically cancelledcanceled, without any exercise thereof and no payment or distribution shall be made with respect thereto; provided, that shares of Company Common Stock held by the Company or its Subsidiaries in trust accounts, managed accounts, investment accounts and the like shall not be cancelled and shall be treated in accordance with Section 2.2(a)(i).
(b) Notwithstanding anything From and after the Effective Time, all shares of Company Common Stock converted pursuant to Section 2.2(a)(i), all shares of Company Common Stock cancelled in accordance with Section 2.2(a)(vii) and all Company Options shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a Certificate shall cease to have any rights with respect thereto, except, in the case of shares of Company Common Stock canceled pursuant to Section 2.2(a)(i), the right to receive the Merger Consideration to which such holder is entitled with respect to the contrary including the definitions shares of Company Common Stock Per Share Amount and Merger Option Consideration, represented by the maximum aggregate consideration to be paid Certificate(s) surrendered by such holder pursuant to this Section 2.6 is $29,302,0002.3(b), or in the case of a cancelled Company Option the right to receive the Option Payments. If (i) From and after the numberEffective Time, type and rights all certificates representing Buyer Common Stock, Buyer Series A Preferred Stock or Buyer Series B Preferred Stock, as the case may be, shall be deemed for all purposes to represent only the number of the shares of capital stock of the Company are not Surviving Corporation into which such shares were converted in accordance with Sections 2.2(a)(iii), 2.2(a)(iv) or 2.2(a)(v), as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateapplicable.
Appears in 2 contracts
Samples: Merger Agreement (Franklin Electronic Publishers Inc), Merger Agreement (Saunders Acquisition Corp)
Conversion of Shares. (a) At Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubPurchaser, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company, Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Effective Time (or held in the Company’s treasury)) shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock held by Parent, Merger Sub, and Purchaser or any other wholly-owned Subsidiary of Parent, Parent as of immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii) subject to Sections 2.6(b), 2.8 and 2.9” above, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(other than any Dissenting Shares) shall automatically be converted automatically into and shall thereafter represent the right to receive the Common Stock Per Share Amount, without interest;Offer Price; and
(iiiiv) each share of the common stockCommon Stock, $0.01 .001 par value per share, of Merger Sub Purchaser outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;.
(ivb) subject If, during the period from the date of this Agreement through the Effective Time, 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 and a record date with respect to any such event shall occur during such period, then the Offer Price shall be equitably adjusted, without duplication, to reflect such change; provided that nothing in this Section 2.6(b)1.8(b) shall be deemed to permit or authorize any party hereto to effect any such change that it is prohibited by the terms of this Agreement to undertake.
(c) Notwithstanding anything to the contrary set forth in this Agreement, each Vested all shares of Company Option Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time and held by a stockholder of the Company who (A) has demanded appraisal for such shares in accordance with Section 262 of the DGCL, (B) has properly complied with Section 262 of the DGCL, and (C) has not effectively withdrawn or lost its rights to appraisal (“Dissenting Shares”) shall automatically not be converted into, or represent the right to receive, the Offer Price pursuant to this Section 1.8. By virtue of the Merger, all Dissenting Shares shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under Section 262 of the DGCL; provided, however, that notwithstanding the foregoing, all Dissenting Shares held by a stockholder of the Company who shall have failed to perfect or who shall have effectively withdrawn or lost such stockholder’s right to appraisal under such Section 262 of the DGCL shall thereupon be deemed exercised to have been converted into, and to have become exchangeable for, the deemed right to receive the Offer Price pursuant to Section 1.8(a), without any interest thereon, upon surrender of the Common Stock Certificate(s) or non-certificated shares of Company Common Stock associated with represented by book entry (“Book Entry Shares”) that formerly evidenced such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon in the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as manner set forth in Section 3.61.10. The Company shall give Parent (i) prompt notice of, and/or together with copies of, any demand received by the Company for appraisal of any Company Common Stock, withdrawals of such demands, and any other instruments received by the Company as part of any such demand for dissenter’s rights and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for dissenter’s rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered under Delaware law in respect of a share Dissenting Shares. The Company shall not, except with the prior written consent of Company Common Stock and a Vested Company Option Parent, voluntarily make any payment with respect to any demands for which an Option Consent has been obtained (and accordingly, pursuant appraisal rights or settle or offer to Section 2.6) shall be adjusted downward as appropriatesettle or compromise any such demands for payment in respect of Dissenting Shares.
Appears in 2 contracts
Samples: Merger Agreement (AutoWeb, Inc.), Employment Agreement (AutoWeb, Inc.)
Conversion of Shares. (a) At the Effective TimeDate, by virtue of the Merger and without any further action on the part of ParentSONA, Merger Sub, EVBS or the Company or holder of any stockholder of the Companyfollowing securities:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company common stock, par value $0.01 per share, of SONA (“SONA Common Stock Stock”) issued and outstanding immediately prior to the Effective Time Date shall remain an issued and outstanding share of common stock of the Continuing Corporation and shall not described in Section 2.6(a)(i) shall automatically be converted into affected by the right to receive the Common Stock Per Share Amount, without interest;Merger.
(iiib) each share All shares of the common stock, $0.01 par value $2.00 per share, of Merger Sub EVBS (“EVBS Common Stock”) issued and outstanding immediately prior to the Effective Time Date that are owned, directly or indirectly, by SONA or EVBS (other than shares of EVBS Common Stock held in trust accounts (including grantor or rabbi trust accounts), managed accounts and similar accounts, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties) (any such shares, the “EVBS Cancelled Shares”) shall no longer be outstanding, shall automatically be cancelled and shall cease to exist and no consideration shall be converted into one delivered in exchange therefor.
(c) Subject to Section 2.3, each share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b)EVBS Common Stock, each Vested Company Option except for EVBS Cancelled Shares, issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall Date will cease to be outstanding and will be converted automatically be deemed exercised into and exchanged for the deemed right to receive 0.6313 shares (the “Exchange Ratio”) of validly issued, fully paid and nonassessable shares of Company 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 associated with such exercise shall automatically to be cancelled and, in consideration for such deemed exercise and automatic cancellationpaid pursuant to Section 2.6, the holder “Common Stock Merger Consideration”); it being understood that upon the Effective Date, pursuant to Section 2.1(a), SONA Common Stock, including the shares issued to former holders of such Vested Company Option EVBS Common Stock, shall be entitled the Continuing Corporation Common Stock.
(d) Subject to receiveSection 2.3, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option EVBS Non-Voting Mandatorily Convertible Non-Cumulative Preferred Stock, Series B, par value $2.00 per share (“EVBS Series B Preferred Stock”), issued and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall Date will cease to be outstanding and will be converted automatically be terminated; andinto and exchanged for the right to receive, at the election of the holder of such share of EVBS Series B Preferred Stock, either:
(vii) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled0.6313 shares (equal to the Exchange Ratio) of validly issued, without any exercise thereof fully paid and no payment or distribution shall be made with respect thereto.nonassessable shares of Continuing Corporation Common Stock; or
(bii) Notwithstanding anything 0.6313 shares (equal to the contrary including Exchange Ratio) of validly issued, fully paid and nonassessable shares of non-voting common stock of the definitions Continuing Corporation, par value $0.01 per share (“Continuing Corporation Non-Voting Common Stock”). The shares of Continuing Corporation Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid Continuing Corporation Non-Voting Common Stock payable pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.62.1(d) shall be adjusted downward referred to as appropriatethe “Preferred Stock Merger Consideration”, and together with the Common Stock Merger Consideration, the “Merger Consideration”).
(e) If, between the date hereof and the Effective Date, the outstanding shares of SONA Common Stock or EVBS 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 similar change in capitalization, appropriate and proportionate adjustments shall be made to the Exchange Ratio.
Appears in 2 contracts
Samples: Merger Agreement (Southern National Bancorp of Virginia Inc), Merger Agreement (Eastern Virginia Bankshares Inc)
Conversion of Shares. (a) At All Shares held in the treasury of the Company (the "Excluded Shares") shall be canceled and shall cease to exist as of 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:consideration being payable therefor.
(ib) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held Notwithstanding anything in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior this Agreement to the Effective Time shall be cancelled without any conversion thereof contrary, Shares which would otherwise constitute Elected Cash Shares hereunder, which are issued and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and which are held by stockholders who did not described vote in favor of the Merger and who comply with all of the relevant provisions of Section 2.6(a)(i262 of the DGCL (the "Dissenting Shares") shall automatically not be converted into or be exchangeable for the right to receive the Cash Merger Price (as defined below), but instead shall be converted into the right to receive payment from the Surviving Corporation with respect to such Dissenting Shares in accordance with the DGCL, unless and until such holders shall have effectively withdrawn or lost their rights to appraisal under the DGCL. If any such holder shall have effectively withdrawn or lost such right, such holder's Shares shall be converted into the right to receive the Common Stock Per Share AmountCash Merger Price (as defined below). The Company shall give prompt notice to the Investor of any demands received by the Company for appraisal of Shares, without interest;and the Investor shall have the right 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 the Investor, make any payment with respect to, or settle or offer to settle, any such demands.
(iiic) each share By virtue of the common stockMerger, $0.01 par value per share, of Merger Sub each Share issued and outstanding immediately prior to the Effective Time Time, other than Excluded Shares and Dissenting Shares (other than Shares held by the company or any of its Subsidiaries, which shall be canceled), shall be retained or converted into the right to receive cash as follows:
(i) Each Share that is an Elected Retained Share and each Share that is a Non-Elected Retained Share (as hereinafter defined) (in either case, a "Retained Share") shall be retained by the holder thereof following the Effective Time, shall remain outstanding and (i) with respect to the Common Stock, par value $0.01, of the Company (the "Common Stock"), shall represent one share of Common Stock, par value $0.01, of the Surviving Corporation and (ii) with respect to the $2.00 Exchangeable Preferred Stock par value $0.01 of the Company (the "Exchangeable Preferred"; the Common Stock, collectively, with the Exchangeable Preferred, the "Shares"), shall represent 1.92604 shares of Common Stock, par value $0.01, of the Surviving Corporation (shares of the Surviving Corporation to which a holder shall be entitled pursuant to this Section 3.2(c)(i) shall be referred to herein as "Retained Surviving Corporation Shares"); and
(ii) Subject to Section 3.3(b), each share of Common Stock that is an Elected Cash Share of Common Stock shall be converted into one share of common stock of the right to receive from the Surviving Corporation;
Corporation $16.00 in cash (iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company "Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise Cash Merger Price") and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Exchangeable Preferred that is an Elected Cash Share shall be converted into the right to receive from the Surviving Corporation $30.82 in cash (the "Exchangeable Preferred Cash Merger Price"; the Common Stock issuable upon Cash Merger Price and the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Exchangeable Preferred Cash Merger Option Consideration less any required withholding of Taxes; for avoidance of doubtPrice, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Considerationapplicable, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate"Cash Merger Price").
Appears in 2 contracts
Samples: Merger Agreement (Kapson Senior Quarters Corp), Merger Agreement (Prometheus Senior Quarters LLC)
Conversion of Shares. The manner and basis of converting the outstanding shares of each of the constituent corporations shall be as follows:
(a) At Each share of common stock of SNKT outstanding on the Effective Time, by virtue Date of the Merger and merger shall, without any further action on the part of Parentthe holder thereof, Merger Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation;
(iv) subject Corporation which shall, on such conversion, be validly issued and outstanding, fully paid, and nonassessable, and shall not be liable to Section 2.6(b)any further call, each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time nor shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall thereof be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder liable for any further payments with respect thereto, an amount in cash equal to . After the positive result, if any, Effective Date of the Merger Option Consideration less any required withholding merger, each holder of Taxes; an outstanding certificate which prior thereto represented shares of common stock of SKNT shall be entitled, upon surrender thereof along with the payment of Fifteen Dollars ($15.00) to SNKT's transfer agent, Colonial Stock Transfer, 440 Xxxx 000 Xxxxx, Xxxxx 0, Xxxx Xxxx Xxxx, Xxxx, xx receive in exchange for avoidance a certificate or certificates representing the number of doubt, as whole shares of common stock of SNKT a result certificate or certificates evidencing the number of whole shares of the foregoingSurviving Corporation. Until so surrendered, each Vested Company Option, and any deemed issuance such outstanding certificate which represents shares of Company Common Stock associated with common stock of SNKT shall for all purposes evidence the deemed exercise, ownership of shares of the Surviving Corporation into which such shares shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretohave been converted.
(b) Notwithstanding anything to All shares of common stock of SNKT which have been converted into shares of common stock of the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid Surviving Corporation pursuant to this Section 2.6 Article IV shall be issued in full satisfaction of all rights to the shares of common stock of SNKT, as applicable.
(c) If any certificate for shares of the Surviving Corporation is $29,302,000. If to be issued in a name other than that in which the certificate surrendered in exchange therefor is registered, it shall be a condition of issuance thereof that (i) the numbercertificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights transfer be in compliance with applicable federal and state securities laws and (whether options, warrants iii) the person requesting such exchange shall pay to the Surviving Corporation or any agent designated by it any transfer or other rights) to acquire capital stock taxes required by reason of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect issuance of a share certificate for shares of Company Common Stock and a Vested Company Option for which an Option Consent the Surviving Corporation in any name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or any agent designated by it that such tax has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatepaid or is not payable.
Appears in 2 contracts
Samples: Merger Agreement (Simex Technologies Inc), Merger Agreement (Simex Technologies Inc)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubAcquisition Co., the Company or any stockholder shareholder of the Company:
(i) any all shares of Company Common Stock then held by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Subshall be canceled and retired and shall cease to exist, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time no consideration shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretodelivered in exchange therefor;
(ii) all shares of Company Common Stock, if any, then held by Parent, Acquisition Co. or any other wholly owned subsidiary of Parent shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses (i) and (ii) above and subject to Sections 2.6(b), 2.8 2.5(c) and 2.92.8, each share of Company Common Stock then outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share AmountAmount (the “Merger Consideration”), without interest;; and
(iiiiv) each share all of the shares of the common stock, $0.01 1.00 par value per share, of Merger Sub Acquisition Co. then outstanding immediately prior to the Effective Time shall be converted into one share of common stock Surviving Corporation Common Stock.
(b) All Company Options (as defined in Section 3.2(b) below) shall terminate as of the Surviving Corporation;
(iv) Effective Time, whether or not vested or exercisable and without regard to any agreements qualifying the right to retain or exercise any such Company Options. At the Effective Time, subject to the terms and conditions set forth below in this Section 2.6(b2.5(b), each Vested holder of a Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall whether or not vested or exercisable will be entitled to receive from the Company, and shall receive, with respect to in settlement of each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash a “Cash Amount.” The “Cash Amount” shall be equal to the positive resultnet amount of (A) the product of the excess, if any, of the Merger Consideration over the exercise price per share of such Company Option at the Effective Time, multiplied by (ii) the number of shares subject to such Company Option, less (B) any applicable withholdings for Tax (as defined in Section 3.17 below). If the exercise price per share of any Company Option equals or exceeds the Merger Consideration, the Cash Amount therefor shall be zero. Except as may be otherwise agreed to by Parent and the Company, the Company's Stock Option Plan (as defined in Section 3.2 below) shall terminate as of the Effective Time and the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of Company or any Subsidiary shall be deleted, terminated and of no further force or effect as of the Effective Time. Notwithstanding the foregoing, (i) payment of the Cash Amount is subject to written acknowledgement, in a form acceptable to the Surviving Corporation, that no further payment is due to such holder on account of any Company Option and all of such holder's rights under such Company Options have terminated and (ii) with respect to any Person subject to Section 16(a) of the Exchange Act, any Cash Amount to be paid to such Person in accordance with this Section 2.5(b) shall be paid as soon as practicable after the payment can be made without liability on such Person’s part under Section 16(b) of the Exchange Act.
(c) If, between the date of this Agreement and the Effective Time, 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 Merger Consideration less any required withholding of Taxes; for shall be appropriately adjusted to reflect such change or transaction. For avoidance of doubt, as a result of it is understood that the foregoing, each Vested Company Option, and shall not have the right to take any deemed issuance of such action with respect to the Company Common Stock associated with without the deemed exercise, which shall prior written consent of Parent. The provisions of this Section 2.5(c) do not be issued, shall both be cancelled at apply to the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately exercise of options granted prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretodate hereof.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co)
Conversion of Shares. (a) At Subject to the provisions of this Article 2, at the Effective Time, by virtue of the Merger and without any further action on the part of ParentWSFS, Merger SubAlliance or the stockholders of either of the foregoing, the Company or any stockholder shares of the Companyconsolidated corporations shall be converted as follows:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time capital stock of WSFS issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one remain issued and outstanding from and after the Effective Time.
(b) Each share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option Alliance Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed that is held by any wholly owned Alliance Subsidiary, by WSFS or any WSFS Subsidiary (in each case other than shares of Company Common Stock associated with such exercise shall automatically be cancelled and, held in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and any Employee Benefit Plans or related trust accounts or otherwise held in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, fiduciary or agency capacity or as a result of debts previously contracted) (collectively, the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which “Canceled Shares”) shall not no longer be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option canceled and retired and shall be automatically cancelledcease to exist, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(bc) Notwithstanding anything Subject to Section 2.2, each share of Alliance Common Stock issued and outstanding immediately prior to the contrary including Effective Time (excluding the definitions Canceled Shares) shall be converted, at the election of Common Stock Per Share Amount and Merger Option Considerationthe holder thereof, in accordance with the procedures set forth in Article 3 into the right to receive the following consideration (collectively, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If “Merger Consideration”), in each case without interest:
(i) for each share of Alliance Common Stock with respect to which an election to receive cash has been effectively made and not revoked or deemed revoked pursuant to Article 3 (a “Cash Election”), the numberright to receive in cash from WSFS an amount (the “Cash Consideration”) equal to the Per Share Cash Amount (such shares collectively, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or “Cash Election Shares”);
(ii) the rights for each share of Alliance Common Stock with respect to which an election to receive WSFS Common Stock has been effectively made and not revoked or deemed revoked pursuant to Article 3 (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6a “Stock Election” and such shares collectively, the consideration “Stock Election Shares”) or which is otherwise to receive shares of WSFS Common Stock in accordance with the terms of this Agreement, the right to receive from WSFS 0.28955 (the “Exchange Ratio”) shares of WSFS Common Stock (the “Stock Consideration”); and
(iii) for each share of Alliance Common Stock other than Cash Election Shares and Stock Election Shares (collectively, the “Non-Electing Shares”), the right to receive from WSFS the Stock Consideration.
(d) All shares of Alliance Common Stock, when so converted pursuant to Section 2.1(c), shall no longer be delivered in respect outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate or book-entry share (each a “Certificate”) registered in the transfer books of Company Alliance that immediately prior to the Effective Time represented shares of Alliance Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordinglyshall cease to have any rights with respect to such Alliance Common Stock other than the right to receive the Merger Consideration in accordance with Article 3, including the right, if any, to receive, pursuant to Section 2.6, cash in lieu of fractional shares of WSFS Common Stock into which such shares of Alliance Common Stock have been converted together with the amounts, if any, payable pursuant to Section 3.2(d).
(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, Alliance should split, combine or otherwise reclassify the shares of Alliance Common Stock, or make a dividend or other distribution in shares of Alliance Common Stock (including any dividend or other distribution of securities convertible into Alliance Common Stock), or engage in a reclassification, reorganization, recapitalization or exchange or other like change, then (without limiting any other rights of WSFS hereunder), the Merger Consideration (including the Exchange Ratio and the Per Share Cash Amount) shall be adjusted downward as appropriateequitably 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), Agreement and Plan of Reorganization (Alliance Bancorp, Inc. Of Pennsylvania)
Conversion of Shares. (a) At Each Share issued and outstanding -------------------- immediately prior to the Effective TimeTime (other than shares of Company Common Stock to be cancelled as set forth in Section 2.6(b) and 2.6(c)) shall, by virtue of the Merger and without any further action on the part of Parentthe holder thereof, be converted into, exchanged for and represent the right to receive an amount equal to the Per Share Amount in cash (the "Merger SubConsideration"), payable, -------------------- without interest, to the Company or any stockholder holder of such Share, upon surrender, in the manner described below, of the Company:certificate that formerly evidenced such Share.
(ib) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, Each Share issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall which is then owned beneficially or of record by Parent or any Subsidiary of Parent shall, by virtue of the Merger and without any action on the part of the holder thereof, be cancelled and retired and cease to exist, without any conversion thereof and no payment or distribution shall be made with respect thereto;thereof.
(iic) subject Each Share held in Company's treasury immediately prior to Sections 2.6(b)the Effective Time shall, 2.8 by virtue of the Merger, be cancelled and 2.9retired and cease to exist, each share without any conversion thereof.
(d) Notwithstanding anything in this Section 2.6 to the contrary, shares of Company Common Stock which are issued and outstanding immediately prior to the Effective Time and which are held by stockholders of Company who have not described voted such shares in Section 2.6(a)(ifavor of the Merger and who shall have properly exercised their rights of appraisal for such shares in the manner provided by the GCL (the "Dissenting Shares") shall automatically not be converted into or be exchangeable ----------------- for the right to receive the Common Stock Per Share AmountMerger Consideration, unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost his right to appraisal and payment, as the case may be. If such holder shall have so failed to perfect or shall have effectively withdrawn or lost such right, his shares shall thereupon be deemed to have been converted into and to have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration, without interest;
any interest thereon. Company shall give Parent prompt notice of any Dissenting Shares (iiiand shall also give Parent prompt notice of any withdrawals of such demands for appraisal rights) each share and Parent shall have the right to direct all negotiations and proceedings with respect to any such demands. Neither Company nor the Surviving Corporation shall, except with the prior written consent of Parent, voluntarily make any payment with respect to, or settle or offer to settle, any such demand for appraisal rights. Stockholders of Company who shall have perfected their right of appraisal and not withdrawn or otherwise lost such right of appraisal, shall be entitled to receive payment of the common stock, $0.01 par appraised 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated held by them in accordance with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder provisions of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction Section 262 of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoGCL.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Intermedia Communications of Florida Inc), Agreement and Plan of Merger (Intermedia Communications of Florida Inc)
Conversion of Shares. (a) At Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubPurchaser, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company, Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Effective Time (or held in the Company’s treasury)) shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock held by Parent, Merger Sub, and Purchaser or any other wholly-owned Subsidiary of Parent, Parent as of immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii) subject to Sections 2.6(b), 2.8 and 2.9” above, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(other than any Dissenting Company Shares) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;Offer Price; and
(iiiiv) each share of the common stockCommon Stock, $0.01 par value per share, of Merger Sub Purchaser outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;.
(ivb) subject If, during the period from the date of this Agreement through the Effective Time, 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 and a record date with respect to any such event shall occur during such period, then the Offer Price shall be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.6(b)1.8(b) shall be deemed to permit or authorize any party hereto to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(c) Notwithstanding anything to the contrary set forth in this Agreement, each Vested all shares of Company Option Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time and held by a stockholder of the Company who (A) has demanded appraisal for such shares in accordance with Section 262 of the DGCL, (B) has properly complied with Section 262 of the DGCL, and (C) has not effectively withdrawn or lost its rights to appraisal (“Dissenting Company Shares”) shall automatically not be converted into, or represent the right to receive, the Offer Price pursuant to this Section 1.8. By virtue of the Merger, all Dissenting Company Shares shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under Section 262 of the DGCL; provided, however, that notwithstanding the foregoing, all Dissenting Company Shares held by a stockholder of the Company who shall have failed to perfect or who shall have effectively withdrawn or lost such stockholder’s right to appraisal under such Section 262 of the DGCL shall thereupon be deemed exercised to have been converted into, and to have become exchangeable for, the deemed right to receive the Offer Price pursuant to Section 1.8(a), without any interest thereon, upon surrender of the Company Stock Certificate(s) or non-certificated shares of Company Common Stock associated with represented by book entry (“Book Entry Shares”) that formerly evidenced such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon in the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as manner set forth in Section 3.61.10. The Company shall give Parent (i) prompt notice of, and/or together with copies of, any demand received by the Company for payment of the fair value of any Company Common Stock, withdrawals of such demands, and any other instruments received by the Company as part of any such demand for dissenter’s rights and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for dissenter’s rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered under Delaware law in respect of a share Dissenting Company Shares. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal rights or settle or offer to settle or compromise any such demands for payment in respect of Dissenting Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateShares.
Appears in 2 contracts
Samples: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Tetraphase Pharmaceuticals Inc)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubSubsidiary, the Company or the holders of any stockholder shares of Company Common Stock or any shares of capital stock of Parent or Merger Subsidiary:
(a) except as otherwise provided in Section 2.02(b) or Section 2.04, each share of Company Common Stock (including each Company Restricted Share) outstanding immediately prior to the Effective Time (together with the Company Rights attached to each such share), shall be converted into the right to receive $19.25 in cash, without interest (such per share amount, the “Merger Consideration”). As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each certificate which immediately prior to the Effective Time represented any such shares of Company Common Stock (each, a “Certificate”) and each uncertificated share of Company Common Stock (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. For avoidance of doubt, no Merger Consideration shall be paid under this Section 2.02(a) on account of any Performance Unit or any right or security into which such Performance Unit converts as a result of the transactions contemplated by this Agreement, and the settlement of Performance Units hereunder shall be governed solely by the provisions of Section 2.05 hereof.
(ib) any shares each share of Company Common Stock held by the Company, Company or any wholly-of its Subsidiaries or owned Subsidiary by Parent or any of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, its Subsidiaries immediately prior to the Effective Time together with the Company Rights attached to each such share shall be cancelled without any conversion thereof canceled, and no payment or distribution shall be made with respect thereto;; and
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iiic) each share of the common stock, $0.01 par value per share, stock of Merger Sub Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated Corporation with the deemed exercisesame rights, which powers and privileges as the shares so converted and shall not be issued, shall both be cancelled at constitute the Effective Time;
(v) each Vested Company Option only outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubPurchaser, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock Share held immediately prior to the Effective Time by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub) shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any other wholly-owned Subsidiary of Parent, Share held immediately prior to the Effective Time by Parent or Purchaser shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor (such Shares, if any, together with any Shares to be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretopursuant to Section 2.5(a)(i), the “Cancelled Shares”);
(iiiii) any Share held immediately prior to the Effective Time by any wholly owned Subsidiary of the Company or of Parent (other than Purchaser), if any (the “Converted Shares”), shall be converted into such number of shares of common stock of the Surviving Corporation such that each such Subsidiary shall own the same percentage of the outstanding capital stock of the Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time;
(iv) except as provided in Section 2.5(a)(i), 2.5(a)(ii) or 2.5(a)(iii) (and subject to Sections 2.6(bSection 2.5(b)), 2.8 and 2.9, each share of Company Common Stock Share outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(other than any Dissenting Shares, as defined below) shall automatically be converted into the right to receive the Common Stock Per Share AmountOffer Price in cash, without interest;interest (the “Merger Consideration”), subject to any applicable withholding Taxes; and
(iiiv) each share of the common stock, $0.01 par value per share, of Merger Sub Purchaser outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to If, between the contrary including date of this Agreement and the definitions of Common Stock Per Share Amount and Merger Option ConsiderationEffective Time, the maximum aggregate consideration to outstanding Shares 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 Merger Consideration shall be paid pursuant to appropriately adjusted; it being understood that, for the avoidance of doubt, nothing in this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.62.5(b) shall be adjusted downward as appropriateconstrued to permit the Company to take any action that is prohibited by the terms of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parentthe holders thereof:
(a) except as otherwise provided in Section 3.1(b) (Treasury Stock), Merger SubSection 3.1(c) (Surviving Company Stock), the Company or any stockholder each three hundred (300) shares of common stock of the Company:
, par value $0.00001 per share (i) any shares of the "Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasuryStock"), Parent, Merger Sub, issued and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one (1) (the "Exchange Ratio") fully paid and nonassessable share of common stock stock, par value $0.001 per shares, of Parent (the Surviving Corporation"Parent Common Stock"), such shares of Parent Common Stock into which shares of Company Common Stock are converted pursuant to this subclause (a) the "Merger Consideration";
(ivb) subject to Section 2.6(b)Upon the consummation of the Merger, each Vested shareholder of Company Option outstanding and unexercised Common Stock shall receive, as a result of the exchange of shares, a number of shares of Parent Common Stock such that the Shareholder's ownership interest in the merged entity shall be not less than the greater of either: (i) One hundred (100) shares of Parent Common Stock post-Merger, or (ii) The number of shares of Parent Common Stock that represents a value of at least $2,500. In the event that the Exchange Ratio calculated pursuant to the terms of the Merger would result in a number of Parent Common Stock such that the Shareholder's ownership interest would be less than the greater of the amounts specified in sub-clauses (i) or (ii) above, the Exchange Ratio shall be adjusted upward to ensure compliance with this ownership guarantee. Notwithstanding the foregoing, if any legal or regulatory requirement or limitation prevents the full implementation of this ownership guarantee, the parties shall negotiate in good faith to develop an alternative mechanism that achieves an exact economic result for which an Option Consent is obtained the shareholders of Company Common Stock.
(c) each share of Company Common Stock owned solely by the Company as treasury stock or owned solely by Parent or Merger Sub immediately prior to the Effective Time shall automatically be deemed exercised canceled and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andcease to exist, in and no consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, paid with respect to thereto; and
(d) each share of Company Common Stock issuable upon held by any Subsidiary of either the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the or Parent (other than Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(vSub) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
converted into such number of shares of common stock, par value $0.00001 per share, of the Surviving Company (vi"Surviving Company Stock") such that each outstanding such Subsidiary owns the same percentage of the Surviving Company Option that is not a Vested immediately following the Effective Time as such Subsidiary owned in the Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything immediately prior to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (American Cannabis Company, Inc.), Merger Agreement (American Cannabis Company, Inc.)
Conversion of Shares. (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 CompanyStockholder:
(ia) any shares of Company Common Stock Shares then held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury)) shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(b) any Company Shares then held by Parent, Merger SubSub or any other Subsidiary of Parent shall be canceled and retired and shall cease to exist, and any other wholly-owned Subsidiary of Parentno consideration shall be delivered in exchange therefor;
(c) except as provided in clauses (a) and (b) above, subject to Section 1.8, Section 1.9, Section 1.10 and Section 8.6, as applicable, each Company Preferred Share (excluding for these purposes Dissenting Shares and Restricted Shares) issued and outstanding immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and no payment or distribution shall be made with respect theretoautomatically converted into the right of the holder to receive the following:
(i) the Per Share Cash Preference;
(ii) the Per Share Stock Preference;
(iii) the Per Share Cash Participation;
(iv) the Per Share Stock Participation;
(v) the Contingent Per Share Participation Cash; and
(vi) the Contingent Per Share Cash.
(d) except as provided in clauses (a) and (b) above, subject to Sections 2.6(b)Section 1.8, 2.8 Section 1.9, Section 1.10 and 2.9Section 8.6, as applicable, each share of Company Common Stock Share (excluding for these purposes Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall be canceled and not described in Section 2.6(a)(i) shall automatically be converted into the right of the holder to receive the Common Stock following:
(i) the Per Share Amount, without interestCash Participation;
(ii) the Per Share Stock Participation;
(iii) the Contingent Per Share Participation Cash;
(iv) the Contingent Per Common Share Cash; and
(v) the Contingent Per Share Cash.
(e) each share of the common stock, $0.01 par value $0.00001 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;, such that immediately following the Effective Time, Parent shall become the sole and exclusive owner of all of the issued and outstanding capital stock of the Company as the Surviving Corporation; and
(ivf) subject to Section 2.6(b), each Vested Company Option Restricted Share that is issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically vest in full and all restrictions, forfeiture conditions and repurchase rights with respect thereto shall lapse, and each Restricted Share shall be deemed exercised and converted into the deemed shares of right to receive the consideration specified in Section 1.5(d) for Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder Shares. For purposes of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Semnur Pharmaceuticals, Inc.), Merger Agreement (Sorrento Therapeutics, Inc.)
Conversion of Shares. (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 CompanyCompany or Parent or any other Person:
(i) any shares of Company Common Capital Stock held as treasury stock or held or owned by the Company, Merger Sub or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Capital Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i) and not described in Section 2.6(a)(iexcluding Dissenting Shares) shall be automatically be converted solely into the right to receive the a number of shares of Parent Common Stock Per Share Amountequal to the Exchange Ratio (the “Merger Consideration”).
(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, with appropriate adjustments to any per share repurchase price to reflect the Exchange Ratio, and certificates representing such shares of Parent Common Stock shall accordingly be marked with appropriate legends. The Company shall use its commercially reasonable efforts to take all actions that may be reasonably 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 its terms, if any.
(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 Section 1.8 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 30-Day VWAP.
(iiid) each All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.5(a).
(e) All Company Convertible Notes outstanding immediately prior to the Effective Time shall remain outstanding and be assumed by Xxxxxxx as of immediately prior to the Effective Time.
(f) Each share of the common stock, $0.01 0.0001 par value per share, of Merger Sub 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, $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;.
(ivg) subject to Section 2.6(b)If, each Vested Company Option outstanding between the time of calculating the Exchange Ratio and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Parent Common Stock associated with such exercise shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, split, or exchange of shares or other like change, the holder of Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such Vested Company Option shall be entitled change to receive, with respect the extent necessary to each share provide the holders of Company Capital Stock, Parent Common Stock issuable upon the exercise of such Vested Stock, Company Option Options, and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive resultother Convertible Company Securities, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately same economic effect as contemplated by this Agreement prior to such stock dividend, subdivision, reclassification, split, or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option or Parent to take any action with respect to Company Capital Stock or Parent Common Stock, respectively, that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretopermitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, the holder of any common stock of DHS or Merger Sub, the Company or any stockholder of the CompanySubsidiary:
(i) any shares each share of Company Common Stock Stock, par value $0.001 per share, of DHS (the "DHS COMMON STOCK") held by the Company, DHS as treasury stock or owned by MAI or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, MAI immediately prior to the Effective Time shall automatically be cancelled canceled and retired without any conversion thereof thereof, and no payment MAI Common Stock or distribution other consideration shall be made with respect theretodelivered in exchange therefor;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company common stock, par value $.01 per share, of Merger Subsidiary outstanding immediately prior to the Effective Time shall automatically be converted into and become one share of common stock of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and
(iii) each share (each, a "SHARE" and collectively, the "SHARES") of DHS Common Stock outstanding immediately prior to the Effective Time and not described shall, except as otherwise provided in Section 2.6(a)(i) shall 1.02(a)(i), automatically be converted into the right to receive .375 shares of fully paid and non-assessable Common Stock, par value $0.002 per share of MAI (the "MAI COMMON STOCK"); provided, however, that the foregoing conversion ratio shall be (A) appropriately adjusted in the event that there shall occur any stock dividend, stock split, combination of shares, recapitalization or other such event relating to the MAI Common Stock Per Share Amountor the DHS Common Stock between the date hereof and the Effective Time, without interest;
(iiiB) each share of proportionately increased or decreased (as the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior case may be) in the event and to the Effective Time shall be converted into one share extent that the number of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company MAI Common Stock associated with such exercise shall automatically be cancelled andshall, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v, be greater than or less than the number of outstanding shares of MAI Common Stock on the date hereof, other than increases resulting from the exercise of options or warrants that are outstanding on the date hereof or hereafter issued in accordance with Section 5.01(f) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior any issuance of MAI Common Stock pursuant to the Effective Time shall automatically be terminated; and
outstanding Asset Purchase Agreement between MAI and Jaysxx Xxxxxxx, xxch that the DHS stockholders receive in the Merger the same percentage of the total outstanding MAI Common Stock (vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything immediately after giving effect to the contrary including Merger) as they would have received had the definitions Merger been consummated on the date of this Agreement, and (C) increased or decreased (as the case may be) in the event and to the extent that the number of outstanding shares of DHS Common Stock Per Share Amount shall, at the Effective Time, be less than or greater than the number of outstanding shares of DHS Common Stock on the date hereof, other than increases resulting from exercises of options or warrants outstanding on the date hereof or hereafter issued in accordance with Section 5.02(f) and from the conversion of any DHS Preferred Stock (including additional shares of DHS Preferred Stock which may hereafter accrue as in-kind dividends), such that the DHS stockholders receive in the Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights same percentage of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company total outstanding MAI Common Stock and a Vested Company Option for which an Option Consent has (immediately after giving effect to the Merger) as they would have received had the Merger been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateconsummated on the date of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Herchman Paul), Agreement and Plan of Merger (Medical Alliance Inc)
Conversion of Shares. (a) At the Effective Time, each share of the Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Company Common Stock to be cancelled pursuant to Section 4.1(b) and Dissenting Shares) shall be cancelled and extinguished and automatically converted into the right to receive the Merger Consideration. At the Effective Time, the holders of Book Entry Shares and the holders of certificates that, immediately prior to the Effective Time, represented outstanding Company Common Stock (the “Certificates”) shall cease to have any rights with respect thereto other than the right to receive, upon surrender of such Book Entry Shares or Certificates in accordance with Section 4.2, the Merger Consideration, without any interest thereon, for each such share of the Company Common Stock, or with respect to Dissenting Shares, the rights set forth in Section 262 of the DGCL.
(b) All shares of Company Common Stock that are owned by the Company as treasury shares and any shares of Company Common Stock owned by Parent, Sub or any other direct or indirect Subsidiary of Parent shall, at the Effective Time, be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(c) 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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9holder thereof, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid and nonassessable share of common stock stock, par value $0.001 per share, of the Surviving Corporation;.
(ivd) subject to Section 2.6(b)No fraction of a share of Parent Common Stock will be issued by virtue of the Merger, but in lieu thereof each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares holder of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall that would otherwise be entitled to receive, with respect to each a fraction of a share of Company Parent Common Stock issuable (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) shall, upon the exercise surrender of such Vested Company Option and holder’s Certificate(s) or Book Entry Share(s) or in full satisfaction the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit in the rights of the holder with respect theretomanner provided in Section 4.2(g), receive from Parent an amount in of cash (rounded to the nearest whole cent), without interest, equal to the positive result, if any, product of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the numbersuch fraction, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or multiplied by (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateParent Measurement Price.
Appears in 2 contracts
Samples: Merger Agreement (Cavium, Inc.), Merger Agreement (Qlogic Corp)
Conversion of Shares. (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 by the Company, Company or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, ) immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretopaid in exchange therefor;
(ii) any shares of Company Common Stock held 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 paid in exchange therefor;
(iii) any shares of Company Series A Preferred Stock held by the Company or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury) immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be paid in exchange therefor;
(iv) except as provided in clauses “(i)”, “(ii)” and (iii) above and subject to Sections 2.6(b1.5(b), 2.8 1.5(c) and 2.91.8, (A) each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive $1.71 in cash, without interest and (B) each share of Company Series A Preferred Stock outstanding immediately prior to the Common Stock Per Share AmountEffective Time shall be converted into the right to receive $3.37 in cash, without interest;; and
(iiiv) each share of the common stock, $0.01 0.001 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 applicable to the Company Common Stock or the Company Series A Preferred Stock, as applicable, as specified in clause “(iv)” of the preceding sentence (as such amount may be adjusted in accordance with Section 1.5(b)) is referred to as the “Per Share Merger Price.”
(ivb) subject If, during the period commencing on the date of this Agreement and ending at the Effective Time, the outstanding shares of Company Common Stock or Company Series A Preferred 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 applicable to Section 2.6(b), each Vested such class of shares shall be appropriately adjusted.
(c) If any shares of Company Option Common Stock outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically are, as of the Effective Time, 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) the Merger Consideration to be deemed exercised and the deemed paid in exchange for such shares of Company Common Stock associated with such exercise shall automatically will also be cancelled andunvested and subject to the same repurchase option, in consideration for such deemed exercise risk of forfeiture or other condition (subject to the vesting and automatic cancellation, the holder vesting acceleration terms of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of restricted stock purchase agreement or other Contract); and (ii) such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall need not be issuedpaid until such time as such repurchase option, risk of forfeiture or other condition lapses or otherwise terminates. The Company shall both take all action that may be cancelled at necessary to ensure that, from and after the Effective Time;
: (v1) each Vested Company Option outstanding such Merger Consideration shall remain so unvested and unexercised for which an Option Consent is not obtained immediately prior subject to such repurchase option, risk of forfeiture or other condition (subject to the Effective Time shall automatically be terminatedvesting and vesting acceleration terms of such restricted stock purchase agreement or other Contract); and
(vi2) each outstanding Company Option that is such Merger Consideration need not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant until such time as such repurchase option, risk of forfeiture or other condition lapses or otherwise terminates; and (3) Parent is entitled to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as exercise any such repurchase option or other right set forth in Section 3.6, and/or (ii) the rights (whether options, warrants any such restricted stock purchase agreement or any other rights) to acquire capital stock of the Company are not as set forth Contract in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateaccordance with its terms.
Appears in 2 contracts
Samples: Merger Agreement (GoRemote Internet Communications, Inc.), Merger Agreement (Ipass Inc)
Conversion of Shares. (a) At Each share of Company Common Stock issued and outstanding immediately prior to the Effective TimeTime whether or not subject to transfer restrictions or rights of Company to reacquire such shares (other than (i) shares of Company Common Stock held in Company's treasury or by any of Company's Subsidiaries, (ii) shares of Company Common Stock held by Parent or Merger Sub and (iii) Dissenting Shares) shall, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, Company or the holder thereof, be cancelled and extinguished and be converted into the right to receive, pursuant to Section 1.6, $6.25 per share ("Merger Consideration"), payable in cash to the holder thereof, without interest thereon, upon the surrender of the Company or any stockholder of the Company:
(i) any Stock Certificate formerly representing such shares of Company Common Stock held by the CompanyStock, less any wholly-owned Subsidiary required withholding of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;Taxes.
(iib) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and not described in Section 2.6(a)(i) shall automatically without any action on the part of Parent, Merger Sub or Company, be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each and become one fully paid and nonassessable share of the common stock, $0.01 no par value per share, of Surviving Corporation.
(c) Each share of Company Common Stock held in the treasury of Company or by any of Company's Subsidiaries and each share of Company Common Stock held by Parent or Merger Sub outstanding (or their respective Subsidiaries) immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b)shall, each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, by virtue of the Merger Option Consideration less and without any required withholding action on the part of Taxes; for avoidance of doubtParent, as a result of Merger Sub, Company or the foregoingholder thereof, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof retired and cease to exist and no payment or distribution shall be made with respect thereto.
(bd) Notwithstanding anything Immediately prior to the contrary including the definitions Effective Time, Company shall take all actions necessary so that all warrants then outstanding to purchase shares of Company Common Stock Per Share Amount heretofore granted under any arrangement or agreement shall become fully exercisable (whether or not currently exercisable) and, at the Effective Time, each warrant not theretofore exercised shall be canceled. Subject to the following sentence and Sections 1.5(f) and (g), each holder of a warrant that is canceled pursuant to the preceding sentence shall, in respect of each such warrant, be entitled to a cash payment by Surviving Corporation in an amount equal to (i) the excess, if any, of (x) the Merger Consideration over (y) the applicable exercise price per share of Company Common Stock subject to such warrant, multiplied by (ii) the number of shares of Company Common Stock for which such warrant was exercisable immediately prior to such cancellation, provided that the foregoing shall not require any action that violates the warrant. The foregoing cash payment shall be made by the Surviving Corporation upon or as soon as practicable after (A) such holder's surrender of all warrants held by such holder or (B) delivery by such holder of such holder's written agreement or acknowledgement that all warrants held by such holder have been cancelled as a result of the Merger in exchange for such cash payment; provided, however, that if it is determined that compliance with this Section 1.5(d) would cause any individual subject to Section 16 of the Exchange Act to become subject to the profit recovery provisions thereof, any warrants held by such individual will be cancelled or purchased as the case may be, as promptly thereafter as possible so as not to subject such individual to any liability pursuant to Section 16.
(e) Immediately prior to the Effective Time, Company shall take all actions necessary so that all options then outstanding to purchase shares of Company Common Stock ("Company Stock Options") heretofore granted under any plan, arrangement or agreement (collectively, "Option ConsiderationPlans") shall become fully vested and exercisable (whether or not currently exercisable) and, at the maximum aggregate consideration Effective Time, each Company Stock Option not theretofore exercised shall be canceled. Subject to the following sentence and Sections 1.5(f) and (g), each holder of a Company Stock Option that is canceled pursuant to the preceding sentence shall, in respect of each Company Stock Option, be paid entitled to a cash payment by Surviving Corporation in an amount equal to (i) the excess, if any, of (x) the Merger Consideration over (y) the applicable exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the number of shares of Company Common Stock for which such Company Stock Option was exercisable immediately prior to such cancellation, provided that the foregoing shall not require any action that violates the Option Plans. The foregoing cash payment shall be made by the Surviving Corporation upon or as soon as practicable after (A) such holder's surrender of all Company Stock Options held by such holder or (B) delivery by such holder of such holder's written agreement or acknowledgement that all Company Stock Options held by such holder have been cancelled as a result of the Merger in exchange for such cash payment; provided, however, that if it is determined that compliance with this Section 1.5(e) would cause any individual subject to Section 16 of the Exchange Act to become subject to the profit recovery provisions thereof, any Company Stock Options held by such individual will be cancelled or purchased as the case may be, as promptly thereafter as possible so as not to subject such individual to any liability pursuant to Section 16.
(f) The Surviving Corporation shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to this Section 2.6 1.5 to any holder of Company Stock Options or of warrants to purchase Company Common Stock such amounts as the Surviving Corporation is $29,302,000required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax Law. If To the extent that amounts are so deducted and withheld by the Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Options in respect of which such deduction and withholding was made by the Surviving Corporation.
(g) Except as provided herein or as otherwise agreed to by the parties, and to the extent permitted by the Option Plans, (i) the number, type and rights Option Plans shall terminate as of the shares Effective Time and the provisions in any other plan, program or arrangement providing for the issuance or grant by Company or any of its Subsidiaries of any interest in respect of the capital stock of the Company are not or any of its Subsidiaries shall be deleted as set forth in Section 3.6, and/or of the Effective Time and (ii) Company will use all reasonable efforts to ensure that following the rights (whether options, warrants Effective Time no holder of Options or any participant in the Option Plans or any other rights) such plans, programs or arrangements shall have any right thereunder to acquire capital stock any equity securities of the Company are not as set forth in Section 3.6Company, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation or any Subsidiary thereof.
Appears in 2 contracts
Samples: Merger Agreement (Greka Energy Corp), Merger Agreement (Greka Energy Corp)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentBuyer, Merger Sub, the Company or any stockholder the holders of the Companyfollowing securities:
(i) each share of common stock, no par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into one (1) validly issued, fully paid and nonassessable share of common stock, par value $0.02 per share, of the Surviving Corporation, which newly issued shares shall thereafter constitute all of the issued and outstanding capital stock of the Surviving Corporation; and
(ii) subject to Section 2.4(c) and 2.4(d), each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as defined below) and shares of Company Common Stock held by the Company, Company or any wholly-owned Subsidiary of the Company (or held and as otherwise provided in Section 2.4.(d) hereof) shall be converted into and represent the right to receive an amount in cash equal to the price per share paid in the Company’s treasuryOffer, without any interest thereon (the “Merger Consideration”), Parentupon the surrender of a certificate (a “Certificate”) representing such share of Company Common Stock as provided in Section 2.6.
(b) Immediately following the Effective Time, Merger Suball shares of Company Common Stock (other than shares of Company Common Stock held by the Company or any Subsidiary of the Company, but excluding the Bankruptcy Shares) shall cease to be outstanding and shall be cancelled and retired and shall cease to exist, and each holder of shares of Company Common Stock shall thereafter cease to have any rights with respect to such shares of Company Common Stock, except for the right to receive, without interest thereon, the Merger Consideration upon the surrender of a Certificate in accordance with the provisions of this Article II.
(c) Shares of Company Common Stock that have not been voted for adoption of this Agreement and with respect to which appraisal shall have been properly demanded in accordance with Subchapter 15D and Section 1930 of the PBCL (“Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration at or after the Effective Time unless and until the holder of such shares withdraws his demand for such appraisal (in accordance with Subchapter 15D of the PBCL) or becomes ineligible for such appraisal. If a holder of Dissenting Shares shall withdraw (in accordance with Subchapter 15D of the PBCL) his demand for such appraisal or shall become ineligible for such appraisal, then, as of the Effective Time or the occurrence of such event, whichever last occurs, each of such holder’s Dissenting Shares shall cease to be a Dissenting Share and shall be converted into and represent the right to receive the Merger Consideration. Prior to the Effective Time, the Company shall give Buyer prompt notice and copies of any written demands received by the Company for appraisal of shares of Company Common Stock and all written or electronic communications between the Company and its representatives, on the one hand, and the dissenting Company Shareholders and their representatives, on the other wholly-hand, relating thereto, and Buyer shall have the right to participate in all negotiations and proceedings with respect to such demands. The Company shall not make any payments with respect to, or compromise or settle, any demand for appraisal without the prior written consent of Buyer.
(d) Each share of Company Common Stock owned by Buyer or any Subsidiary of Parent, Buyer immediately prior to the Effective Time shall be cancelled without any conversion thereof cancelled, and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(be) Notwithstanding anything to the contrary including the definitions For purposes of Common Stock Per Share Amount and Merger Option Considerationthis Agreement, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the numberword “Subsidiary” means, type and rights with respect to any Person (as defined below), any corporation, partnership, joint venture, limited liability company or other legal entity of which such Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly, 50% or more of the shares of capital stock ownership interests or voting rights with respect to the election of the Company are not as set forth in Section 3.6board of directors or other governing body of, and/or such corporation or other legal entity; and (ii) the rights word “Person” includes an individual, corporation, partnership, association, trust, unincorporated organization, limited liability company, other entity or group (whether options, warrants or any other rightsas defined in Section 13(d)(3) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateExchange Act).
Appears in 2 contracts
Samples: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Conversion of Shares. (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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time by Company or any wholly owned Subsidiary of Company (or held in Company's treasury) shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(ii) any shares of Company Common Stock held immediately prior to the Effective Time by Parent, Merger Sub or any other wholly owned Subsidiary of Parent shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses (i) and (ii) of this Section 1.5(a) and subject to Sections 2.6(b1.5(b) and 1.5(c), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive (A) 0.6575 (the "Exchange Ratio") of a share of Parent Common Stock (the "Common Stock Consideration") and (B) $5.25 in cash (the "Cash Consideration" and, together with the Common Stock Per Share AmountConsideration, without interest;the "Merger Consideration"); and
(iiiiv) each share of the common stock, $0.01 0.001 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one remain outstanding as a share of common stock of the Surviving Corporation;.
(ivb) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Common Stock associated or Parent Common Stock are changed into a different number or class of shares by reason of any stock split, stock dividend, reverse stock split, combination, reclassification, recapitalization or other similar transaction, then the Exchange Ratio and the Cash Consideration shall be appropriately adjusted.
(c) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such exercise fractional shares shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the issued. Any holder of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal who would otherwise be entitled to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as receive a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect fraction of a share of Company Parent Common Stock and (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a Vested share and, upon surrender of such holder's Company Option for Stock Certificate(s) (as defined in Section 1.6), 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 on the NYSE on the date on which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatethe Effective Time occurs.
Appears in 2 contracts
Samples: Merger Agreement (Chiles Offshore Inc/New/), Merger Agreement (Ensco International Inc)
Conversion of Shares. (a) At the Merger Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder the holders of the CompanyCompany Common Stock:
(a) other than (i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof pursuant to Section 2.03(b) and no payment or distribution shall be made with respect thereto;
(ii) subject Dissenting Shares (such shares together with the shares of Company Common Stock to Sections 2.6(bbe cancelled pursuant to Section 2.03(b), 2.8 and 2.9collectively, the “Excluded Shares”), each share of Company Common Stock outstanding immediately prior to the Merger Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive (A) one (the “Exchange Ratio”) share of Parent Common Stock Per (the “Share AmountConsideration”), subject to Section 2.08 with respect to fractional shares, (B) $50.00 in cash without interestinterest (the “Cash Consideration”) and (C) one contingent value right (a “New CVR”) issued by Parent subject to and in accordance with the New CVR Agreement (the consideration contemplated by subclauses (A), (B) and (C) together, the “Merger Consideration”);
(iiib) (i) each share of Company Common Stock held by the Company as treasury stock or owned by Parent or Merger Sub immediately prior to the Merger Effective Time (other than any such shares owned by Parent or Merger Sub 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 and (ii) each share of Company Common Stock held by any wholly owned Subsidiary of either the Company or Parent (other than Merger Sub) immediately prior to the Merger Effective Time (other than shares held in a fiduciary, representative or other capacity on behalf of other Persons, whether or not held in a separate account) shall be converted into such number of fully paid and non-assessable shares of common stockstock of the Surviving Corporation such that the ownership percentage of any such Subsidiary in the Surviving Corporation immediately following the Merger Effective Time shall equal the ownership percentage of such Subsidiary in the Company immediately prior to the Merger Effective Time;
(c) each share of common stock of Merger Sub, par value $0.01 par value per share, of Merger Sub issued and outstanding immediately prior to the Merger Effective Time shall be converted into and become one share of common stock, par value $0.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute (together with any share of common stock of the Surviving Corporation described in Section 2.03(b)(ii)) the only outstanding shares of capital stock of the Surviving Corporation;; and
(ivd) subject to Section 2.6(b), each Vested Company Option all outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall no longer be outstanding and shall automatically be cancelled andand retired and shall cease to exist, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to (i) each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretothat was, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Merger Effective Time shall automatically be terminated; and
Time, represented by a certificate (vieach, a “Certificate”) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a each uncertificated share of Company Common Stock which, immediately prior to the Merger Effective Time, was registered to a holder on the stock transfer books of the Company (an “Uncertificated Share”) shall (in each case, other than with respect to Excluded Shares) thereafter represent only the right to receive (A) the Merger Consideration and a Vested Company Option for which an Option Consent has been obtained (and accordinglyB) with respect to the Share Consideration, the right to receive (1) any dividends or other distributions pursuant to Section 2.62.04(f) shall and (2) any cash in lieu of any fractional shares of Parent Common Stock pursuant to Section 2.08, in each case to be adjusted downward as appropriateissued or paid in accordance with Section 2.04, without interest.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Conversion of Shares. (a) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Sub, Sub II or the Company or any stockholder holder of the capital stock of the Company:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (Except as otherwise provided in Section 2.03(a)(iii) or held in the Company’s treasurySection 2.03(a)(iv), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock issued and outstanding as of immediately prior to the First Effective Time shall be converted into the right to receive 1 validly issued and not described allotted, fully paid-up Merger Sub I Share, subject to adjustment in accordance with Section 2.08. As of the First Effective Time, all such shares of Company Common 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 shares of Merger Sub I as set forth in the immediately preceding sentence, and any cash in lieu of fractional shares in accordance with Section 2.05.
(ii) Except as otherwise provided in Section 2.6(a)(i2.03(a)(iii) or Section 2.03(a)(iv), each share of Company Series C Preferred Stock issued and outstanding as of immediately prior to the First Effective Time shall automatically be converted into the right to receive the Common Stock Per Share AmountLiquidation Preference in cash without interest (the “Preferred Stock Consideration”). As of the First Effective Time, all such shares of Company Series C Preferred 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 Preferred Stock Consideration, to be paid in accordance with Section 2.04, without interest;.
(iii) each Each share of Company Stock held by the common stock, $0.01 par value per share, of Merger Sub outstanding Company as treasury stock immediately prior to the First Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b)canceled, each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(biv) Notwithstanding anything Each share of Company Stock held by Parent, Merger Sub I, HoldCo or by any Subsidiary of the Company, Parent, Merger Sub I or HoldCo immediately prior to the contrary including the definitions First Effective Time shall be converted into such number of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights shares of common stock of the Surviving Corporation such that Parent, Merger Sub I, HoldCo or each such Subsidiary, as applicable, owns the same percentage of Surviving Corporation immediately following the First Effective Time as Parent, Merger Sub I, HoldCo or such Subsidiary owned in the Company immediately prior to the First Effective Time.
(v) Each share of common stock of Merger Sub II outstanding immediately prior to the First 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 so converted and, except as provided in Section 2.03(a)(iv), shall constitute the only outstanding shares of capital stock of the Company are not Surviving Corporation.
(b) At the Second Effective Time by virtue of the Second Merger and without any action on the part of Merger Sub I or HoldCo or any holder of the capital stock of HoldCo or Merger Sub I Share:
(i) Except as set forth otherwise provided in Section 3.62.03(b)(ii) and Section 2.05 and subject to adjustment in accordance with Section 2.08, and/or each Merger Sub I Share outstanding (and each right to receive such Merger Sub I Shares) as of immediately prior to the Second Effective Time shall be converted into the right to receive 0.300 (the “Exchange Ratio”) validly issued and allotted, fully paid-up HoldCo ADSs against the deposit of the requisite number of HoldCo Shares (together with the cash in lieu of fractional HoldCo ADSs (or HoldCo Shares) provided for in Section 2.05, the “Common Stock Consideration” and, together with the Preferred Stock Consideration, the “Merger Consideration”). Notwithstanding anything to the contrary in this Agreement, the holders of Merger Sub I Shares as of immediately prior to the Second Effective Time may elect to receive 0.300 validly issued and allotted, fully paid-up HoldCo Shares in lieu of the Common Stock Consideration, in which case (1) any and all HoldCo Shares delivered to such holders who have elected to receive HoldCo Shares shall, for all purposes of this Agreement, be deemed to be the Common Stock Consideration and (2) Parent shall be deemed to have satisfied its obligations under this Agreement with respect to HoldCo ADSs through the registration, issuance, delivery and listing of HoldCo Shares. The Merger Consideration shall be given in consideration for the acquisition by HoldCo of all of the assets and liabilities of Merger Sub I including but not limited to all the shares in the Surviving Corporation held by Merger Sub I. As of the Second Effective Time, all such Merger Sub I Shares 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 Common Stock Consideration and the right to receive any dividends or other distributions pursuant to Section 2.04(f), in each case to be issued or paid in accordance with Section 2.04, without interest, and any cash in lieu of fractional shares in accordance with Section 2.05.
(ii) the rights Each Merger Sub I Share (whether options, warrants A) held by HoldCo or any other rightsof its Subsidiaries (including Parent), (B) held by Merger Sub I as treasury stock immediately prior to acquire capital stock of the Company are Second Effective Time or (C) that was not as set forth issued in the First Merger pursuant to Section 3.6, the consideration to be delivered 2.03(a)(i) in respect of exchange for a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatecanceled, and no payment shall be made with respect thereto.
Appears in 2 contracts
Samples: Merger Agreement (Avon Products Inc), Merger Agreement
Conversion of Shares. (a) At the Effective Time, 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 Companyholder thereof:
(i) any shares of Company Common Stock each Share held by the CompanyCompany as treasury stock or owned by Acquiror or any subsidiary of Acquiror (excluding Shares, any wholly-owned Subsidiary of the Company (or if any, held in the Company’s treasuryany "Rabbi trust" identified on Schedule 3.14, which may be accounted for as treasury stock ("Rabbi Trust Shares"), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, ) immediately prior to the Effective Time (together with the associated Company Right (as defined in Section 3.05), if any) shall be cancelled without any conversion thereof canceled, and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, stock of Merger Sub Subsidiary 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 so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation;
(iviii) subject to Section 2.6(b), each Vested Share (including each Rabbi Trust Share) (together with the associated Company Option Right) outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically shall, except as otherwise provided in Section 1.02(a)(i), be deemed exercised and converted into the deemed right to receive 1.32015 (the "Exchange Ratio") shares of Company fully paid and nonassessable common stock, without par value, of Acquiror ("Acquiror Common Stock associated with such exercise shall automatically be cancelled Stock"); and, in consideration for such deemed exercise
(iv) Each issued and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each outstanding share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoSeries B ESOP Convertible Preferred Stock, an amount in cash equal to the positive result, if anypar value $1.00 per share, of the Merger Option Consideration less any required withholding Company (the "Series B Preferred Stock") held in the leveraged ESOP portion of Taxes; for avoidance the Company's Employee Savings Plan (the "Leveraged ESOP"), other than Dissenting Shares, shall be converted into the right to receive one validly issued, fully paid and nonassessable share of doubta new series of preferred stock to be issued by Acquiror (as a successor under Section 8(A) of the Certificate of Designation, Preferences and Rights establishing the Series B Preferred Stock) at the Effective Time (the "Acquiror Preferred Stock"). Each share of Acquiror Preferred Stock shall, to the extent possible, have terms that are identical to those of the Series B Preferred Stock immediately prior to the Effective Time, except that, (a) as a result of the foregoing, each Vested Company OptionMerger the issuer thereof shall be Acquiror rather than the Company, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled (b) upon conversion thereof (at the Effective Time;
(vsame times and subject to the same terms and conditions under which Series B Preferred Stock is convertible into Shares) each Vested Company Option outstanding and unexercised for share of Acquiror Preferred Stock shall be converted into that Merger Consideration (as defined below) which an Option Consent is not obtained the holder thereof would have received had the Series B Preferred Stock of such holder been converted into Shares immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoTime.
(b) Notwithstanding anything All Acquiror Common Stock issued as provided in this Section 1.02 shall be of the same class and shall have the same terms as the currently outstanding Acquiror Common Stock. Acquiror shall, following the Closing, except as provided in Section 1.03(c), pay all stamp duties and stamp duty reserve tax, if any, imposed in connection with the issuance or creation of the Acquiror Common Stock and Acquiror Preferred Stock in connection with the Merger. The Company shall have the right to approve the Certificate of Designations establishing the Acquiror Preferred Stock, such approval not to be unreasonably withheld.
(c) From and after the Effective Time, all Shares (together with the associated Company Rights) converted in accordance with Section 1.02(a)(iii) and all Series B Preferred Stock (other than Dissenting Shares) converted in accordance with Section 1.02(a)(iv) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such Shares or Series B Preferred Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration or Preferred Merger Consideration (each as defined below), as applicable, and any dividends payable pursuant to Section 1.03(f). From and after the Effective Time, all certificates representing the common stock of Merger Subsidiary shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with Section 1.02(a)(ii).
(d) The Acquiror Common Stock to be received as consideration pursuant to the contrary including the definitions Merger by each holder of Shares (together with cash in lieu of fractional shares of Acquiror Common Stock Per Share Amount and as specified below) is referred to herein as the "Merger Option Consideration". The Acquiror Preferred Stock to be received as consideration pursuant to the Merger by each holder of Series B Preferred Stock is referred to herein as the "Preferred Merger Consideration."
(e) For purposes of this Agreement, the maximum aggregate consideration word "Subsidiary" when used with respect to be paid pursuant to this Section 2.6 is $29,302,000. If any Person means any other Person, whether incorporated or unincorporated, of which (i) the number, type and rights more than fifty percent of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or securities or other ownership interests or (ii) securities or other interests having by their terms ordinary voting power to elect more than fifty percent of the rights (whether optionsboard of directors or others performing similar functions with respect to such corporation or other organization, warrants is directly owned or controlled by such Person or by any one or more of its Subsidiaries. For purposes of this Agreement, "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6entity or organization, the consideration to be delivered in respect of including a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriategovernment or political subdivision or any agency or instrumentality thereof.
Appears in 2 contracts
Samples: Merger Agreement (Exxon Corp), Merger Agreement (Mobil Corp)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without necessity of any further action on the part of ParentXxxxxxx, Merger Sub, the Company Highland or any stockholder holder of any of the Companyfollowing securities:
(i) any shares each share of Company common stock, par value $.01 per share, of Highland (the "Highland Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasuryStock"), Parent, Merger Sub, issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time (other than shares of Highland Common Stock to be canceled pursuant to Section 1.4(a)(ii) and shares of Highland Common Stock held by any holder who shall have taken the necessary steps under the Delaware Corporation Law to seek appraisal of and demand payment for such shares of Highland Common Stock and who is otherwise entitled to such payment under the Delaware Corporation Law ("Dissenting Stock")), shall be cancelled canceled and extinguished and be converted into the right to receive $25.45 in cash (the "Merger Consideration"), subject to possible reduction pursuant to Section 8.9(e), without any conversion thereof and interest; provided, that in no payment or distribution event shall the aggregate amount of Merger Consideration payable pursuant to this Agreement exceed an amount equal to the per share Merger Consideration stated herein multiplied by the sum of (A) 4,243,474 plus (B) such number of shares, not exceeding 475,730, as may be made with respect theretoissued after the date hereof pursuant to stock options issued pursuant to the Stock Option Plan (as defined in Section 1.5) that are outstanding as of the date hereof;
(ii) subject to Sections 2.6(b), 2.8 and 2.9except as otherwise provided herein, each share of Company Highland Common Stock which is issued and outstanding immediately prior to the Effective Time and not described owned by Xxxxxxx or any direct or indirect subsidiary (as defined in Section 2.6(a)(i8.10) of Xxxxxxx (other than shares held by Xxxxxxx or any such subsidiary in a fiduciary or custodial capacity on behalf of persons other than Highland and its Subsidiaries), or which is held in the treasury of Highland or by any of its Subsidiaries, shall automatically be canceled and retired and no payment shall be made with respect thereto; and
(iii) each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and shall not be altered or changed by the Merger.
(b) Notwithstanding the foregoing provisions or any other provision of this Agreement to the contrary, Dissenting Stock shall not be converted into the right to receive the Common Merger Consideration at or after the Effective Time unless and until the holder of such Dissenting Stock Per Share Amountwithdraws such holder's demand for appraisal, without interest;
(iii) each share with the consent of Highland to the extent such consent may be required, or becomes ineligible for such appraisal. If a holder of Dissenting Stock shall withdraw in writing such holder's demand for appraisal, with the consent of Highland to the extent such consent may be required, or shall become ineligible for such appraisal, whether through failure to comply with the applicable provisions of the common stockDelaware Corporation Law or otherwise, $0.01 par value per sharethen, as of the later of the Effective Time or the occurrence of such event, such holder's Dissenting Stock shall be automatically converted into and represent solely the right to receive the Merger Consideration without interest thereon. Highland shall give Merger Sub and Xxxxxxx prompt written notice of any demands for appraisal, withdrawals of demands for appraisal and any other instruments served pursuant to Section 262 of the Delaware Corporation Law received by Highland. Highland shall not voluntarily make any payment with respect to any demands for appraisal and shall not, except with the prior written consent of Merger Sub outstanding immediately Sub, settle or offer to settle any such demands. Each holder of Dissenting Stock shall have only such rights and remedies as are granted to such holder under Section 262 of the Delaware Corporation Law. Dissenting Stock shall not, after the Effective Time, be entitled to vote for any purpose or be entitled to the payment of dividends or other distributions, other than dividends or other distributions payable to stockholders of record prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Merger Agreement (Highland Bancorp Inc), Merger Agreement (Highland Bancorp Inc)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentMeerkat, Merger Sub, the Company or any stockholder of the CompanyCompany or Meerkat:
(i) any shares of Company Common Capital Stock held as treasury stock or held or owned by the CompanyCompany or Merger Sub, or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Capital Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i) and not described in Section 2.6(a)(iexcluding Dissenting Shares) shall automatically be converted solely into the right to receive the a number of shares of Meerkat Common Stock Per Share Amountequal to the Exchange Ratio (the “Merger Consideration”).
(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 Meerkat Common Stock issued in exchange for such shares of Company Capital Stock will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and such shares of Meerkat 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, Meerkat is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.
(c) No fractional shares of Meerkat 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 Meerkat Common Stock (after aggregating all fractional shares of Meerkat 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 Section 1.8 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 Meerkat Common Stock on the NASDAQ Global Market (or such other NASDAQ market on which the Meerkat Common Stock then trades) on the date the Merger becomes effective.
(iiid) each All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.5.
(e) Each share of the common stock, $0.01 0.0001 par value per share, of Merger Sub 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, $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;.
(ivf) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Meerkat Common Stock associated with 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 Meerkat Reverse Stock Split to the extent such exercise shall automatically be cancelled andsplit has not previously been taken into account in calculating the Exchange Ratio), in consideration for such deemed exercise and automatic cancellationcombination or exchange of shares or other like change, the holder Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Capital Stock, Company Options and Meerkat Common Stock with the same economic effect as contemplated by this Agreement prior to such Vested 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 Option shall be entitled or Meerkat to receive, take any action with respect to each share of Company Capital Stock or Meerkat Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoStock, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Merger Agreement (Synlogic, Inc.), Merger Agreement (Mirna Therapeutics, Inc.)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubPurchaser, the Company or any other stockholder of the Company:
(i) any shares of Shares held immediately prior to the Effective Time by any Acquired Company Common Stock (including Shares held in treasury) shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any Shares held immediately prior to the Effective Time by the CompanyParent, Purchaser or any wholly-other direct or indirect wholly owned Subsidiary of Parent shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except for (A) the Company Excluded Shares, (or held B) Dissenting Shares and (C) any Shares validly tendered and irrevocably accepted for purchase pursuant to the Offer in the Company’s treasuryaccordance with Section 2.1(f), Parent, Merger Sub, each Share issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share AmountOffer Price in cash, without interestinterest (the “Merger Consideration”), subject to any withholding of Taxes required by applicable Laws in accordance with Section 3.6(e);
(iiiiv) Reserved;
(v) any Shares validly tendered and irrevocably accepted for purchase pursuant to the Offer in accordance with Section 2.1(f) shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(vi) each share of the common stock, $0.01 0.001 par value per share, of Merger Sub Purchaser outstanding immediately prior to the Effective Time shall be converted into one (1) share of common stock stock, $0.001 par value per share, of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to If, between the contrary including Agreement Date and the definitions of Common Stock Per Share Amount and Merger Option ConsiderationEffective Time, the maximum aggregate consideration to outstanding Shares 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 Merger Consideration shall be paid pursuant to appropriately adjusted, it being understood that nothing in this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.63.5(b) shall be adjusted downward as appropriateconstrued to permit the Company to take any action that is otherwise prohibited by the terms of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Conversion of Shares. (a) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger SubSub I, the Company or any stockholder of the Companyother Person:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, except for Disregarded Shares and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9Dissenting Shares, each share of Company Class A Common Stock Share issued and outstanding immediately prior to the First Effective Time (for the avoidance of doubt, including the Conversion Shares and not described in Section 2.6(a)(iConverted Equity Award Shares) shall automatically be converted into the right to receive the (A) a number of shares of Parent Common Stock equal to the Per Share AmountStock Consideration and (B) an amount in cash equal to the Per Share Cash Consideration (collectively, the “Per Share Consideration”);
(ii) each Class A Common Share held by the Company (including as treasury stock) (collectively, the “Disregarded Shares”) immediately prior to the First Effective Time shall automatically be canceled without interest;any conversion thereof and shall cease to exist, and no payment shall be made with respect thereto; and
(iii) each share of the common stock, $0.01 par value per share, capital stock of Merger Sub I issued and outstanding immediately prior to the First Effective Time shall be converted into and become one validly issued, fully paid and non-assessable share of common stock of the Final Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercisesame rights, which powers and privileges as the shares so converted and shall not be issued, shall both be cancelled at constitute the Effective Time;
(v) each Vested Company Option only outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6First Surviving Corporation.
(b) At the Second Effective Time, and/or (ii) by virtue of the rights (whether optionsSecond Merger and without any action on the part of Parent, warrants Merger Sub II, the First Surviving Corporation or any other rights) to acquire Person, each share of capital stock of the First Surviving Corporation shall be cancelled and each limited liability company interest of Merger Sub II issued and outstanding immediately prior to the Second Effective Time shall be converted into and become one validly issued, fully paid and (to the extent applicable) non-assessable limited liability company interest of the Surviving Company are not with the same rights, powers and privileges as set forth in Section 3.6the limited liability company interests so converted and shall constitute the only outstanding limited liability company interests of the Surviving Company.
(c) At the Third Effective Time, by virtue of the Third Merger and without any action on the part of Parent, UnSub, Production Company, the consideration to Surviving Company or any other Person, each limited liability company interest of the Surviving Company shall be delivered in respect of a cancelled and each share of capital stock of Production Company Common Stock or limited liability company interest of UnSub, as the case may be, issued and a Vested Company Option for which an Option Consent has been obtained (outstanding immediately prior to the Third Effective Time shall remain outstanding and accordingly, pursuant to Section 2.6) be unaffected by the Third Merger and shall be adjusted downward as appropriateconstitute the only outstanding shares of capital stock of the Final Surviving Company.
Appears in 2 contracts
Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Conversion of Shares. (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 Shares held immediately prior to the Effective Time by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub) shall be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any other wholly-owned Subsidiary of Parent, Shares held immediately prior to the Effective Time by Parent, Merger Sub or any other direct or indirect wholly owned Subsidiary of Parent or Merger Sub shall automatically be cancelled and retired and shall cease to exist, and no consideration shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretodelivered in exchange therefor;
(iii) any Shares held immediately prior to the Effective Time by any wholly owned Subsidiary of the Company shall be converted into such number of shares of stock of the Surviving Corporation such that each such Subsidiary shall own the same percentage of the outstanding capital stock of the Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time (such Shares together with the Shares described in the preceding clauses (i) and (ii), the “Excluded Shares”);
(iv) except as provided in clauses (i), (ii) and (iii) above and subject to Sections 2.6(bSection 1.5(b), 2.8 and 2.9, each share of Company Common Stock Share outstanding immediately prior to the Effective Time and not described (other than any Dissenting Shares, which shall have only those rights set forth in Section 2.6(a)(i1.7) shall automatically be converted into the right to receive the Common Stock Per Share AmountMerger Consideration, without interest;any interest thereon and subject to any withholding of Taxes in accordance with Section 1.6(e); and
(iiiv) each share of the common stock, $0.01 par value per share, stock of Merger Sub then outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) . From and after the Effective Time, subject to this Section 2.6(b1.5(a), each Vested Company Option all Shares shall no longer be outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andand shall cease to exist, in consideration for such deemed exercise and automatic cancellation, the each applicable holder of such Vested Company Option Shares (other than Dissenting Shares) shall be entitled cease to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the have any rights of the holder with respect thereto, an amount in cash equal except the right to the positive result, if any, of receive the Merger Option Consideration less any required withholding therefor upon the surrender of Taxes; for avoidance such Shares in accordance with Section 1.6, or, in the case of doubtDissenting Shares, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretorights set forth in Section 1.7.
(b) Notwithstanding anything to If, between the contrary including date of this Agreement and the definitions of Common Stock Per Share Amount and Merger Option ConsiderationEffective Time, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) outstanding Shares 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 number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) Merger Consideration shall be adjusted downward as appropriateappropriately adjusted.
Appears in 2 contracts
Samples: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)
Conversion of Shares. (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 Companyholder thereof:
(ia) Each share of Company Common Stock owned by the Parent or Mergerco or by any shares direct or indirect Subsidiary of the Parent immediately prior to the Effective Time, and each share of Company Common Stock held in the treasury of the Company or by the Company, any wholly-owned direct or indirect Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled (each of the foregoing shares being an "Excluded Share"), shall, by virtue of the Merger, and without any conversion thereof and no payment action on the Company or distribution shall the holder thereof, be made with respect thereto;cancelled.
(iib) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares and not described in Section 2.6(a)(iother than the Dissenting Shares) shall automatically be by virtue of the Merger, and without any action on the part of the holder thereof, cancelled and converted solely into the right to receive receive, upon the surrender of the certificate formerly representing such share of Company Common Stock Per Share Amountin accordance with Section 2.3 hereof, 0.1722 (the "Conversion Price") of a validly issued, fully paid and non-assessable share of the Parent Class A Common Stock, without interest;; provided, that (i) if the Average Parent Share Price shall be less than $18.875, then the Conversion Price shall be adjusted so that it shall equal the quotient obtained by dividing (A) $3.25 by (B) the Average Parent Share Price, and (ii) if the Average Parent Share Price shall be greater than $24.50, then the Conversion Price shall be adjusted so that it shall equal the quotient obtained by dividing (x) $4.22 by (y) the Average Parent Share Price (the Conversion Price to reflect such adjustment, if any, is hereinafter referred to as the "Adjusted Conversion Price").
(iiic) each Each share of the common stock, $0.01 par value per share, of Merger Sub Mergerco Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and non-assessable share of common stock stock, par value $1.00 per share, of the Surviving Corporation;.
(ivi) subject Each Company Stock Option that is outstanding immediately prior to Section 2.6(b)the Effective Time, each Vested whether or not then vested or exercisable, shall,effective as of the Effective Time, and without any action on the part of the holder thereof, be assumed by the Parent and become and represent an option exercisable for shares of Parent Class A Common Stock (a "Substitute Option") with the same vesting schedules, if any, and expiration dates as such Company Stock Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time (but taking into account any acceleration of the vesting of such Company Stock Option as a result of the consummation of the Merger), with (A) the new exercise price thereof being determined by dividing the exercise price of such Company Stock Option by the Adjusted Conversion Price (with the result of such calculation rounded to the nearest whole cent) and (B) the number of shares issuable upon exercise being determined by multiplying the number of shares to be issued upon exercise of such Company Stock Option by the Adjusted Conversion Price (with the result of such calculation rounded to the nearest whole number).
(ii) The Parent shall automatically be deemed exercised and take all corporate action necessary to reserve for issuance a sufficient number of the deemed shares of Company Parent Class A Common Stock associated with such for delivery upon exercise shall automatically be cancelled andof the Substitute Options. As soon as practicable after the Effective Time, but in consideration for such deemed exercise and automatic cancellationno event later than 45 days after the Effective Time, the holder of such Vested Company Option Parent shall be entitled to receive, file one or more registration statements on Form S-8 (or any successor or appropriate form (including a shelf registration statement on Form S-3 if Form S-8 is not available)) with respect to each the shares of Parent Class A Common Stock subject to such Substitute Options and shall maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses referred to therein) for so long as such Substitute Options remain outstanding.
(e) Each share of Company Common Stock issuable upon the exercise of such Vested Company Option issued and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time and held by a stockholder of the Company who does not vote in favor of the Merger and who complies with all of the relevant provisions of Section 262 (each such share being a "Dissenting Share") shall automatically not be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option converted into the right to receive the Merger Consideration pursuant to the Merger, but instead the holders of Dissenting Shares shall be automatically cancelled, without any exercise thereof and no payment or distribution entitled to receive such consideration as shall be made determined in accordance with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions provisions of Common Stock Per Share Amount and Merger Option ConsiderationSection 262; provided, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If however, that (i) the number, type and if any such holder of Dissenting Shares shall have failed to establish its entitlement to appraisal rights of the shares of capital stock of the Company are not as set forth provided in Section 3.6, and/or 262 or (ii) if any such holder of Dissenting Shares shall have effectively withdrawn its demand for appraisal of such shares of Company Common Stock, or lost its right to appraisal and payment as provided in Section 262, or (iii) if neither any holder of Dissenting Shares nor the rights (whether options, warrants or any other rights) to acquire capital stock Surviving Corporation shall have filed a petition demanding a determination of the Company are not as set forth value of all Dissenting Shares within the time period provided in Section 3.6262, such holder or holders (as the consideration case may be) shall forfeit the right to be delivered in respect the appraisal of a such shares of Company Common Stock and each such share of Company Common Stock shall thereupon be deemed to have been converted, as of the Effective Time, into and a Vested represent the right to receive the Merger Consideration upon surrender of the certificate or certificates formerly representing such shares of Company Option Common Stock in accordance with Section 2.3 hereof. The Company shall not, except with the prior written consent of the Parent, voluntarily make or agree to make any payment with respect to, or settle or offer to settle, any such demands for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatepayment.
Appears in 2 contracts
Samples: Merger Agreement (Cable Car Beverage Corp), Merger Agreement (Cable Car Beverage Corp)
Conversion of Shares. (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 by the Company, Company or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, ) immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(ii) any shares of Company Common Stock held 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 clauses “(i)” and “(ii)” above and subject to Sections 2.6(bSection 1.5(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive $3.5858 (the Common Stock Per Share Amount, without interest;“Merger Consideration”); and
(iiiiv) each share of the 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;.
(ivb) If, during the period commencing on the date of this Agreement and ending at the Effective Time, 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 Merger Consideration shall be appropriately adjusted.
(i) As of the Effective Time, by virtue of the Merger and without any action required on the part of the holders thereof, each option to purchase shares of Company Common Stock (each, a “Company Option”) outstanding under any stock option or equity compensation plan or agreement (the “Company Stock Plans”) that is unexpired, unexercised and outstanding immediately prior to the Effective Time, whether or not then vested or exercisable, shall be deemed to be one hundred percent (100%) vested and exercisable immediately prior to the Effective Time and shall be canceled and extinguished, and Parent shall, or shall cause Surviving Corporation to, promptly following the Effective Time, pay to the holders of such Company Options, an amount in respect thereof equal to the product of (A) the excess, if any, of the Merger Consideration over the exercise price of each such Company Option and (B) the number of shares of Company Common Stock subject thereto (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.6(b1.7(d)).
(ii) The Company shall use all reasonable efforts to effectuate the foregoing, including, but not limited to, sending out the requisite notices and obtaining all consents necessary to cash out and cancel all Company Options necessary to ensure that, after the Effective Time, no person shall have any right under the Company Stock Plans, except as set forth herein.
(d) As of the Effective Time, by virtue of the Merger and without any action or payment being required on the part of the holders thereof, each Vested Company Option Restricted Share outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and converted into the deemed shares of Company Common Stock associated right to receive Merger Consideration in accordance with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoSection 1.7.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 2 contracts
Samples: Merger Agreement (Zilog Inc), Merger Agreement (Ixys Corp /De/)
Conversion of Shares. (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 shareholder of the CompanyCompany or shareholder of Parent, the following shall occur:
(i) any Company Ordinary Shares held in the treasury of the Company or held or owned by the Company or Merger Sub immediately prior to the Effective Time shall be canceled and retired without any conversion and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 1.5(d) each Company Ordinary Share outstanding immediately prior to the Effective Time (excluding shares of to be canceled pursuant to Section 1.5(a)(i) and excluding Company Common Stock Ordinary Shares held by the Parent immediately prior to the Effective Time) shall be automatically converted solely into the right to receive a number of validly issued, fully paid and nonassessable Parent Ordinary Shares, equal to the Exchange Ratio, per each such Company Ordinary Share (the “Merger Consideration”) in accordance with Section 1.8(a).
(b) Notwithstanding any other provision of this Agreement, under no circumstances shall the Parent issue Parent Ordinary Shares to any Company Shareholder pursuant to the terms of this Agreement, to the extent that after giving effect to such issuance, the Company Shareholder, together with any affiliate thereof, would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 9.99% of the number of Parent Ordinary Shares outstanding immediately after giving effect to such issuance (the “Ownership Limitation”). If the Parent cannot issue Parent Ordinary Shares due to be issued pursuant to this Agreement, the Parent shall (i) issue all such Parent Ordinary Shares that may be issued without causing a Company Shareholder to exceed the Ownership Limitation, and (ii) issue to the Company Shareholder, pre-funded warrants to purchase Parent Ordinary Shares, in substantially the form attached hereto as Exhibit D (the “Parent Pre-Funded Warrant”), in lieu of Parent Ordinary Shares not so provided to such holder. Each Parent Pre-Funded Warrant shall be exercised for $0.001 per each Parent Ordinary Share. The Pre-Funded Warrants will be registered in the Parent’s books and will not be listed for trading on any stock exchange or trading market.
(c) If any Company Ordinary Shares 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 share purchase agreement or other similar agreement with the Company, then the Parent Ordinary Shares issued in exchange for such Company Ordinary Shares will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and the certificates representing such Parent Ordinary Shares 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 wholly-owned Subsidiary such repurchase option or other right set forth in any such restricted share purchase agreement or other agreement in accordance with its terms.
(d) No fractional Parent Ordinary Shares 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 Ordinary Shares who would otherwise be entitled to receive a fraction of a Parent Ordinary Share shall not receive such fraction, and shall instead receive such amount rounded to the nearest whole number of Parent Ordinary Shares.
(e) All Company Options outstanding immediately prior to the Effective Time under the Company Share Plans shall be treated in accordance with Section 5.6(a).
(or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parentf) All Company Warrants outstanding if any, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made treated in accordance with respect thereto;Section 5.7(a).
(iig) subject to Sections 2.6(b)Each ordinary share, 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 with no par value per sharevalue, of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically and without further action be converted into and exchanged for one share of common stock validly issued, fully paid and nonassessable ordinary share, NIS 0.05 par value per share, of the Surviving Corporation;Company. Each share certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such ordinary shares of the Surviving Company.
(ivh) subject If, between the time of calculating the Exchange Ratio and the Effective Time, the outstanding Company Ordinary Shares or Parent Ordinary Shares shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any share dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change, the Exchange Ratio shall be equitably adjusted to Section 2.6(b)reflect such change to the extent necessary to provide the holders of Company Ordinary Shares, each Vested Parent Ordinary Shares, Company Option outstanding and unexercised for which an Option Consent is obtained immediately Options with the same economic effect as contemplated by this Agreement prior to such share 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 Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled or Parent to receive, take any action with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoOrdinary Shares or Parent Ordinary Shares, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (SciSparc Ltd.)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parentany party, each share of common stock, par value $0.0001 per share, of Merger SubSub (“Merger Sub Common Stock”), issued and outstanding immediately prior to the Effective Time, shall be converted into one fully paid and nonassessable share of common stock, par value $0.0001 per share, of the Surviving Corporation. As of the Effective Time, the Company shares of Merger Sub Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and the holder or holders of such shares shall cease to have any stockholder rights with respect thereto, except the right to receive shares of common stock in the Surviving Corporation to be issued in consideration therefore as provided herein, without interest. After the Effective Time, Parent shall be the holder of all of the Companyissued and outstanding shares of the Surviving Corporation’s common stock.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of any party:
(i) any shares each share of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution extinguished and shall be made with respect thereto;converted automatically into the right to receive a number of shares of Parent Common Stock equal to the Per Share Merger Consideration; and
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Capital Stock outstanding that is authorized but unissued immediately prior to the Effective Time and not described (including those held in Section 2.6(a)(ithe treasury of the Company) shall automatically be cancelled and extinguished. Each share of Capital Stock to be converted into the right to receive the Common Stock applicable Per Share AmountMerger Consideration as provided in this Section 2.5(b) shall be automatically cancelled and shall cease to exist, without interest;
(iii) each share and the holders of the common stock, $0.01 par value per share, of Merger Sub outstanding Stock Certificates which immediately prior to the Effective Time represented such Capital Stock shall cease to have any rights with respect to such Capital Stock other than the right to receive, upon surrender of such Stock Certificates in accordance with Section 2.8, the applicable number of shares of Parent Common Stock equal to the Per Share Merger Consideration.
(c) From and after the Effective Time, the stock transfer ledger of the Company shall be converted into one share closed and there shall be no further registration of common stock transfers on the ledgers of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed Corporation of any shares of Company Common Stock associated with such exercise shall automatically be cancelled andCapital Stock. If, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at after the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior , Stock Certificates formerly representing shares of Capital Stock are presented to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option Surviving Corporation, they shall be automatically cancelled, without any exercise thereof surrendered and no payment or distribution shall be made with respect theretocanceled as provided in this Article II.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Ideanomics, Inc.)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentSaffron, Merger Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock or Company Preferred Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately as treasury stock prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i) and not described in Section 2.6(a)(iexcluding Dissenting Shares) shall automatically be converted solely into the right to receive the a number of shares of Saffron Common Stock Per Share Amount, without interest;equal to the Exchange Ratio (the “Merger Shares”).
(iiib) each If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or the risk of forfeiture or under any applicable restricted stock purchase agreement or other agreement with the Company (other than those shares (if any) which, as a result of the Merger, shall, by the terms of the agreements applicable thereto, vest or for which any such repurchase options or other such restrictions or risks of forfeiture shall lapse), then the shares of Saffron Common Stock issued in exchange for such shares of Company Common Stock will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and the certificates representing such shares of Saffron Common Stock shall accordingly be marked with appropriate legends. The Company shall take all action that may be necessary to ensure that, from and after the Effective Time, Saffron 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 its terms.
(c) No fractional shares of Saffron Common Stock shall be issued in connection with the Merger as a result of the conversion provided for in Section 1.5(a)(ii), 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 a fraction of a share of Saffron Common Stock (after aggregating all fractional shares of Saffron Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon surrender of such holder’s Company Stock Certificate(s) (as defined in Section 1.6), be entitled to receive, from Saffron in accordance with the common stockprovisions of this Section 1.5, in lieu of such fractional shares and upon surrender of such Company Stock Certificate(s), a cash payment rounded up to the nearest cent in an amount determined by multiplying (i) the closing price per share of Saffron Common Stock on the NASDAQ Global Market (or such other NASDAQ market on which the Saffron Common Stock then trades), as reported in The Wall Street Journal (or, if not reported thereby, as reported in another authoritative source), on the Closing Date by (ii) the fraction of a share of Saffron Common Stock (after aggregating all shares represented by Company Stock Certificates delivered by such holder rounded up to the nearest one thousandth when expressed in decimal form) to which such holder would otherwise be entitled (the “Fractional Share Cash Amount”). The Parties acknowledge that payment of the Fractional Share Cash Amount was not separately bargained-for consideration but merely represents a mechanical rounding off for purposes of avoiding the expense and inconvenience to Saffron that would otherwise be caused by the issuance of fractional shares.
(d) Each share of Common Stock, $0.01 0.0001 par value per share, of Merger Sub 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 Common 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.
(ive) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Saffron Common Stock associated with such exercise shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the holder of such Vested Company Option Exchange Ratio shall be entitled correspondingly adjusted to receive, with respect to each share of Company Common Stock issuable upon provide the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share holders of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained Preferred Stock the same economic effect as contemplated by this Agreement prior to such event.
(f) The certificates representing shares of Saffron Common Stock issuable in the Merger hereunder, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall bear the following legends (along with any other legends that may be required under applicable state and accordinglyfederal corporate and securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, pursuant to Section 2.6) shall be adjusted downward as appropriateAS AMENDED, OR UNDER STATE SECURITIES LAWS AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE, DISTRIBUTION OR OTHER TRANSFER, PLEDGE OR HYPOTHECATION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger Merger, and without any further action on the part of Parent, Merger Sub, the Company or the holders of any stockholder of the following securities:
(a) Each share of Common Stock, no par value per share, of the Company ("COMPANY COMMON STOCK") issued and outstanding immediately before the Effective Time (excluding those held in the treasury of the Company and those owned by any wholly owned Subsidiary of the Company:
), and all rights in respect thereof, shall forthwith cease to exist and be converted into and become exchangeable into .092766387 of a share (the "EXCHANGE RATIO") of Parent Common Stock (collectively, the "MERGER SHARES"), as set forth in Schedule I hereto, subject to adjustment as provided in Section 3.06 below (it being understood that that the Exchange Ratio equals a fraction, (i) the numerator of which fraction is 642,500, and (ii) the denominator of which is 6,926,000, which equals the number of issued and outstanding shares of Company Stock, plus all outstanding options to purchase Company Common Stock (both vested and unvested) and any other securities of the Company exercisable, exchangeable or convertible into shares of Company Common Stock (the "FULLY DILUTED SHARE NUMBER")). An aggregate of 64,250 shares of the Merger Shares shall be subject to escrow pursuant to Article X hereof.
(b) Each share of Company Common Stock held in the treasury of the Company or owned by the Company, any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without canceled and retired and no shares of stock or other securities of Parent, the Surviving Corporation or any conversion thereof other corporation shall be issuable, and no payment or distribution of other consideration shall be made made, with respect thereto;.
(iic) subject to Sections 2.6(b), 2.8 each issued and 2.9, each outstanding share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, capital stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b). From and after the Effective Time, each Vested Company Option outstanding certificate theretofore representing shares of Merger Sub common stock shall be deemed for all purposes to evidence ownership of and unexercised for to represent the number of shares of Surviving Corporation common stock into which an Option Consent is obtained immediately prior to such shares of Merger Sub common stock shall have been converted. Promptly after the Effective Time Time, the Surviving Corporation shall automatically be deemed exercised and the deemed issue to Parent a stock certificate representing 1,000 shares of Company Common Stock associated with such exercise shall automatically be cancelled and, Surviving Corporation common stock in consideration exchange for such deemed exercise and automatic cancellation, the holder certificate that formerly represented shares of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exerciseSub common stock, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding surrendered by Parent and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretocanceled.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (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:
(ia) any shares except as otherwise provided in Section 2.05(b), each share of Company Common Stock and Company Preferred Stock outstanding immediately prior to the Effective Time (which shares of Company Preferred Stock shall be deemed to have converted into Company Common Stock pursuant to Article IV.3(c) of the Company’s articles of incorporation) shall be converted into the right to receive (i) the number of shares of Parent Stock, if any, equal to the Stock Exchange Ratio and (ii) an amount of cash, if any, equal to the Cash Exchange Ratio;
(b) each share of Company Stock held by the Company, Company as treasury stock or owned by Parent or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, its Subsidiaries immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled, and no payment or distribution shall be made with respect thereto;; and
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iiic) each share of the common stock, $0.01 par value per share, stock of Merger Sub Subsidiary 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 so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation;.
(ivd) subject to Section 2.6(b), each Vested if any shares of Company Option Stock outstanding and unexercised for which an Option Consent is obtained 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, then, at Parent’s option and in Parent’s sole discretion, the Final Merger Consideration in respect of such shares shall automatically either be deemed exercised and (i) paid to the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andholder thereof, in consideration for such deemed exercise and automatic cancellationthe manner provided in Section 2.06, without restriction or (ii) paid to the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable thereof over time upon the exercise of such Vested Company Option and in full satisfaction of the rights of vesting requirements associated with the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of applicable restricted stock schedule. Notwithstanding the foregoing, each Vested Company Option, the parties acknowledge and any deemed issuance agree that the Escrow Amount shall be deducted from the Final Merger Consideration payable to holders of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If Article 2, and shall only be payable (ix) upon release from the number, type Escrow Account in accordance with this Agreement and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or Escrow Agreement and (ii) the rights (whether options, warrants or any other rightsy) to acquire capital stock of the Company are extent not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, reduced by indemnification payments pursuant to Section 2.6) shall be adjusted downward as appropriateArticle 10.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Conversion of Shares. (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 CompanyCompany or Parent:
(i) any shares of Company Common Stock held as treasury stock or held or owned by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.7(c), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.7(a)(i) and not described in Section 2.6(a)(iexcluding Dissenting Shares) shall be automatically be converted solely into the right to receive (A) a number of Parent Common Stock Payment Shares equal to the Common Stock Per Share AmountExchange Ratio and (B) a number of Parent Preferred Stock Payment Shares equal to the Preferred Stock Exchange Ratio.
(b) If any shares of Company Common 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, the vesting of such shares of Company Common Stock shall be accelerated immediately prior to the Effective Time, and such shares of Company Common Stock shall no longer be subject to any further vesting, right of repurchase, risk of forfeiture or other such conditions.
(c) No fractional shares of Parent Common Stock and Parent Convertible Preferred 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 Common 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) or a fraction of a share of Parent Convertible Preferred Stock (after aggregating all fractional shares of Parent Convertible Preferred 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 Section 1.9 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 (i) the Parent Closing Price in respect of shares of Parent Common Stock or (ii)(A) the Parent Closing Price multiplied by (B) 100, in respect of shares of Parent Convertible Preferred Stock.
(iiid) each Each share of the common stock, $0.01 0.0001 par value per share, of Merger Sub 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, $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;.
(ive) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Common Stock associated with such exercise or Parent Common Stock or Parent Convertible Preferred Stock shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon Exchange Ratio or the exercise of such Vested Company Option and in full satisfaction of Preferred Stock Exchange Ratio, as the rights of the holder with respect theretocase may be, an amount in cash equal shall, to the positive resultextent necessary, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior equitably adjusted to reflect such change to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything extent necessary to provide the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share holders of Company Common Stock and a Vested Parent Common Stock and Parent Convertible Preferred 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 Option for which an Option Consent has been obtained (and accordinglyor Parent to take any action with respect to Company Common Stock or Parent Common Stock or Parent Convertible Preferred Stock, pursuant to Section 2.6) shall be adjusted downward as appropriaterespectively, that is prohibited or not expressly permitted by the terms of this Agreement.
Appears in 1 contract
Conversion of Shares. (a) All shares of Copper outstanding immediately prior to the Effective Time shall remain the issued and outstanding shares of the Surviving Entity after the Effective Time.
(b) At the Effective Time, each share of Class L Common Stock (other than (i) shares of Class L Common Stock owned by the Company or any of its Subsidiaries, which shall be treated as set forth in Section 2.02(d), and (ii) Appraisal Shares, if any, which shall be canceled) shall, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the holder thereof (any holder of shares of Class L Common Stock or Class A Common Stock (other than (i) the Company or any stockholder of its Subsidiaries and (ii) holders of Appraisal Shares) immediately prior to the CompanyEffective Time, an “Eligible Holder”), be converted into and thereafter evidence the right to receive, without interest:
(i) any if the Eligible Holder (including an Eligible Holder receiving shares of Company Class L Common Stock held by the Company, any wholly-owned Subsidiary as a result of the exercise of any Company (Option or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately Company Warrant prior to the Effective Time shall be cancelled without Time) is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act (an “Accredited Investor”), the Per L Share Merger Consideration, less any conversion thereof and no payment or distribution shall be made with respect thereto;applicable Tax withholding; and
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share if the Eligible Holder (including an Eligible Holder receiving shares of Company Class L Common Stock outstanding immediately as a result of the exercise of any Company Option or Company Warrant prior to the Effective Time and Time) is not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoAccredited Investor, an amount in cash equal to the positive resultvalue of the Per L Share Merger Consideration, based upon the Parent Reference Price, less any applicable Tax withholding. Each share of Class L Common Stock issued and outstanding immediately prior to the Effective Time, when converted or cancelled in accordance with this Section 2.02(b), shall no longer be outstanding, shall automatically be retired and shall cease to exist. After the Effective Time, each Eligible Holder who holds certificates formerly representing shares of Class L Common Stock shall have no rights with respect to the Surviving Entity, except the right to receive, without interest, the Per L Share Merger Consideration or cash equal to the value of the Per L Share Merger Consideration (based upon the Parent Reference Price) in accordance with Section 2.02(b)(i) or Section 2.02(b)(ii), as applicable, in respect of each such share of Class L Common Stock, less any applicable Tax withholding, upon surrender of the certificate(s) evidencing such shares of Class L Common Stock in accordance with Section 2.03 and delivery of a duly executed and completed letter of transmittal in customary form and reasonably acceptable to Parent (the “Letter of Transmittal”).
(c) At the Effective Time, each share of Class A Common Stock (other than (i) shares of Class A Common Stock owned by the Company or any of its Subsidiaries, which shall be treated as set forth in Section 2.02(d), and (ii) Appraisal Shares, if any, which shall be canceled) shall, by virtue of the Merger Option Consideration less Merger, and without any required withholding action on the part of Taxes; for avoidance the Eligible Holder thereof be converted into and thereafter evidence the right to receive, without interest:
(i) if the Eligible Holder (including an Eligible Holder receiving shares of doubt, Class A Common Stock as a result of the foregoing, each Vested exercise of any Company Option, and any deemed issuance of Option or Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at Warrant prior to the Effective Time;) is an Accredited Investor, the Per A Share Merger Consideration, less any applicable Tax withholding; and
(vii) each Vested if the Eligible Holder (including an Eligible Holder receiving shares of Class A Common Stock as a result of the exercise of any Company Option outstanding and unexercised for which an Option Consent or Company Warrant prior to the Effective Time) is not obtained an Accredited Investor, an amount in cash equal to the value of the Per A Share Merger Consideration, based upon the Parent Reference Price, less any applicable Tax withholding. Each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time Time, when converted or cancelled in accordance with this Section 2.02(c), shall no longer be outstanding, shall automatically be terminated; and
(vi) retired and shall cease to exist. After the Effective Time, each outstanding Company Option that is not a Vested Company Option Eligible Holder who holds certificates formerly representing shares of Class A Common Stock shall be automatically cancelledhave no rights with respect to the Surviving Entity, except the right to receive, without interest, the Per A Share Merger Consideration or cash equal to the value of the Per A Share Merger Consideration (based upon the Parent Reference Price) in accordance with Section 2.02(c)(i) or Section 2.02(c)(ii), as applicable, in respect of each such share of Class A Common Stock, less any exercise thereof applicable Tax withholding, upon surrender of the certificate(s) evidencing such shares of Class A Common Stock in accordance with Section 2.03 and no payment or distribution shall be made with respect theretodelivery of a duly executed and completed Letter of Transmittal.
(bd) Notwithstanding anything to At the contrary including the definitions of Common Stock Per Effective Time, each Company Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 that is $29,302,000. If (i) the number, type and rights of the shares of capital stock of owned by the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) of its Subsidiaries shall automatically be canceled and retired and shall cease to acquire capital stock of the Company are not as set forth in Section 3.6exist, the and no consideration to shall be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateexchange therefor.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentVibrant, Merger Sub, the Company or any stockholder of the CompanyCompany or Vibrant:
(i) any shares of Company Common Capital Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, as treasury stock immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 2.5(c), 2.8 and 2.9, each share of Company Common Capital Stock (including any shares of Company Capital Stock issued pursuant to the Company Pre-Closing Financing) outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 2.5(a)(i) and excluding Dissenting Shares) shall be converted solely into the right to receive a number of Vibrant Ordinary Shares equal to the Exchange Ratio (the “Merger Consideration”).
(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 award agreement or other similar agreement with the Company, then the Vibrant Ordinary Shares issued in exchange for such shares of Company Capital Stock will to the same extent be unvested and not described subject to the same repurchase option or risk of forfeiture, and such Vibrant Ordinary Shares 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, Vibrant is entitled to exercise any such repurchase option or other right set forth in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;any such restricted stock award agreement or other agreement.
(iiic) each No fractional Vibrant Ordinary Shares 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.
(d) All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 6.5.
(e) Each share of the common stock, $0.01 par value per share, of Merger Sub 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, $0.01 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;.
(ivf) subject to Section 2.6(b)If, each Vested Company Option outstanding between the date of this Agreement and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Common Capital Stock associated with or Vibrant Ordinary Shares 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 exercise shall automatically be cancelled andsplit has not previously been taken into account in calculating the Exchange Ratio), in consideration for such deemed exercise and automatic cancellationcombination or exchange of shares or other like change, the holder Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Capital Stock, Company Options and Vibrant Ordinary Shares with the same economic effect as contemplated by this Agreement prior to such Vested 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 Option shall be entitled or Vibrant to receive, take any action with respect to each share of Company Common Capital Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoor Vibrant Ordinary Shares, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentDGI, Merger Sub, MICO, WBM or the Company or any stockholder Shareholders, pursuant to this Agreement and the MBCA and the DGCL, subject to the other provisions of the Companythis Section 2:
(i) any shares Each Share of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, MICO issued and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one the right to receive an amount in cash (subject to any applicable withholdings specified in Section 2(c)(i)), without interest thereon, equal to the Merger Consideration, less the Purchase Price Escrow Amount divided by 2,095,829, which is the number of outstanding Shares, other than any Shares to be cancelled pursuant to Section 2(b)(iii) (the “Per Share Merger Consideration”), payable to the holder thereof upon surrender of the certificate representing such Share. As of the Effective Time, all outstanding Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate representing any outstanding Shares shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration.
(ii) Each share of common stock stock, par value $1.00 per share, of Merger Sub (the “Merger Sub Common Stock”), issued and outstanding immediately prior to the Effective Time, shall be converted into and exchanged for one validly issued, fully paid and non assessable share of voting common stock, par value $1.00 per share, of the Surviving Corporation;Corporation (the “Surviving Corporation Common Stock”). From and after the Effective Time, each outstanding certificate which represented shares of Merger Sub Common Stock shall evidence ownership of and represent the number of shares of Surviving Corporation Common Stock into which such shares of Merger Sub Common Stock shall have been converted.
(iviii) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to All Shares held in MICO’s treasury as of the Effective Time shall automatically be deemed exercised cancelled and the deemed shares of Company Common Stock associated with such exercise retired and all rights in respect thereof shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled cease to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelledexist, without any exercise conversion thereof and no or payment or distribution shall be made with respect theretoof any consideration therefor.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Donegal Group Inc)
Conversion of Shares. (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 shareholder of the CompanyCompany or shareholder of Parent, the following shall occur:
(i) any shares of Company Common Stock Share Capital held by in the Company, any wholly-owned Subsidiary treasury of the Company (or held in or owned by the Company’s treasury), Parent, Company or Merger Sub, and any other wholly-owned Subsidiary of Parent, Sub immediately prior to the Effective Time shall be cancelled canceled and retired without any conversion thereof and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Stock Share Capital outstanding immediately prior to the Effective Time and not described in (excluding shares to be canceled pursuant to Section 2.6(a)(i1.5(a)(i)) shall be automatically be converted solely into the right to receive a number of American Depositary Shares (each, a “Parent ADS”), each representing five (5) Parent Ordinary Shares, equal to the Common Stock Per Share AmountExchange Ratio (the “Merger Consideration”), without interest;plus a warrant to purchase Parent ADSs, in substantially the form attached hereto as Exhibit I (the “Chemomab Warrant”) in accordance with Section 1.8(b). TABLE OF CONTENTS
(iiib) each If any shares of Company Share Capital 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 share purchase agreement or other similar agreement with the Company, then the Parent ADSs issued in exchange for such shares of Company Share Capital will to the common stocksame extent be unvested and subject to the same repurchase option or risk of forfeiture, $0.01 and the certificates representing such Parent ADSs 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 share purchase agreement or other agreement in accordance with its terms.
(c) No fractional Parent ADSs 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 Share Capital who would otherwise be entitled to receive a fraction of a Parent ADS (after aggregating all fractional Parent ADSs issuable to such holder) shall not receive such fraction, and shall instead receive such amount rounded to the nearest whole number of Parent ADSs.
(d) All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.6(a).
(e) Each ordinary share, with no par value per sharevalue, of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically and without further action be converted into and exchanged for one share of common stock validly issued, fully paid and nonassessable ordinary share, NIS 0.01 par value per share, of the Surviving Corporation;Company. Each share certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such ordinary shares of the Surviving Company.
(ivf) subject to Section 2.6(b)If, each Vested Company Option outstanding between the time of calculating the Exchange Ratio and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Common Stock associated with such exercise Share Capital, Parent Ordinary Shares or Parent ADSs shall automatically be cancelled andhave been changed into, in consideration for such deemed exercise and automatic cancellationor exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares or other like change, the holder of such Vested Company Option Exchange Ratio shall be entitled equitably adjusted to receivereflect such change to the extent necessary to provide the holders of Company Share Capital, Parent ADSs, 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 action with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoShare Capital or Parent ADSs, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubAcquisition Co., the Company or any stockholder shareholder of the Company:
(i) any all shares of Company Common Stock then held by the Company, Company or any wholly-wholly owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Subshall be canceled and retired and shall cease to exist, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time no consideration shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretodelivered in exchange therefor;
(ii) all shares of Company Common Stock, if any, then held by Parent, Acquisition Co. or any other wholly owned subsidiary of Parent shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses (i) and (ii) above and subject to Sections 2.6(b), 2.8 2.5(c) and 2.92.8, each share of Company Common Stock then outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share AmountAmount (the "Merger Consideration"), without interest;; and
(iiiiv) each share all of the shares of the common stock, $0.01 1.00 par value per share, of Merger Sub Acquisition Co. then outstanding immediately prior to the Effective Time shall be converted into one share of common stock Surviving Corporation Common Stock.
(b) All Company Options (as defined in Section 3.2(b) below) shall terminate as of the Surviving Corporation;
(iv) Effective Time, whether or not vested or exercisable and without regard to any agreements qualifying the right to retain or exercise any such Company Options. At the Effective Time, subject to the terms and conditions set forth below in this Section 2.6(b2.5(b), each Vested holder of a Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall whether or not vested or exercisable will be entitled to receive from the Company, and shall receive, with respect to in settlement of each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash a "Cash Amount." The "Cash Amount" shall be equal to the positive resultnet amount of (A) the product of the excess, if any, of the Merger Consideration over the exercise price per share of such Company Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or multiplied by (ii) the rights number of shares subject to such Company Option, less (whether optionsB) any applicable withholdings for Tax (as defined in Section 3.17 below). If the exercise price per share of any Company Option equals or exceeds the Merger Consideration, warrants or the Cash Amount therefor shall be zero. Except as may be otherwise agreed to by Parent and the Company, the Company's Stock Option Plan (as defined in Section 3.2 below) shall terminate as of the Effective Time and the provisions in any other rights) to acquire plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of Company or any Subsidiary shall be deleted, terminated and of no further force or effect as of the Effective Time. Notwithstanding the foregoing, (i) payment of the Cash Amount is subject to written acknowledgement, in a form acceptable to the Surviving Corporation, that no further payment is due to such holder on account of any Company are not as set forth in Option and all of such holder's rights under such Company Options have terminated and (ii) with respect to any Person subject to Section 3.616(a) of the Exchange Act, the consideration any Cash Amount to be delivered paid to such Person in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to accordance with this Section 2.62.5(b) shall be adjusted downward paid as appropriatesoon as practicable after the payment can be made without liability on such Person's part under Section 16(b) of the Exchange Act.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue By action of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder holders of the Company:
(i) any outstanding shares of Company Common Series A Preferred Stock held by the Company, any wholly-owned Subsidiary and Series B Preferred Stock of the Company (or held in the Company’s treasurycollectively, “Company Preferred Stock”), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Preferred Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted immediately prior to the Effective Time (subject to the satisfaction of the conditions set forth in Section 6.1 and Section 6.3) into that number of shares of Company’s common stock, par value $0.001 per share (the “Company Common Stock”), into which one share of Series A Preferred Stock and Series B Preferred Stock is then convertible.
(b) At the Effective Time, each outstanding share of common stock, par value $.001 per share, of Merger Sub shall, by virtue of the Merger and without any action on the part of the Company, SWAT or Merger Sub, be converted into one fully paid and non-assessable share of common stock of the Surviving Corporation;.
(ivc) subject At the Effective Time, each share of Company Common Stock, issued and outstanding immediately prior to Section 2.6(bthe Effective Time (including the shares of Company Common Stock issued upon conversion of the Company Preferred Stock) (individually, a “Share” and collectively, the “Shares”) (other than (i) Shares held by the Company, (ii) Shares held by SWAT or Merger Sub or (iii) Dissenting Shares (as hereinafter defined)) shall, by virtue of the Merger and without any action on the part of SWAT, Merger Sub or the Company or any holder thereof, be converted into and be exchangeable for the right to receive the number (rounded down to the nearest whole share) of fully paid and non-assessable shares of SWAT Common Stock equal to the Exchange Ratio.
(d) For purposes of this Agreement, the “Exchange Ratio” shall be determined in accordance with the following formula: E = Y Z where E = the Exchange Ratio Y = all shares of SWAT Common Stock (assuming conversion of all outstanding shares of SWAT Series A Convertible Preferred Stock and Series B Convertible Preferred Stock (collectively the “SWAT Preferred Stock”) into shares of SWAT Common Stock) issued and outstanding as of 11:59 pm (San Diego, California time) on the day immediately preceding the Closing Date Z = all outstanding shares of Company Common Stock (assuming conversion of all outstanding shares of Company Preferred Stock into shares of Company Common Stock), as of 11:59 pm (San Diego, California time) on the day immediately preceding the Closing Date All such shares of SWAT Common Stock issued pursuant to this Section 2.1 are referred to herein as the “Merger Consideration.”
(e) At the Effective Time, each Vested Share of Company Option outstanding and unexercised for which an Option Consent is obtained Common Stock owned by SWAT, Merger Sub or the Company immediately prior to the Effective Time shall automatically be deemed exercised canceled and extinguished without any conversion thereof and no consideration shall be delivered in exchange therefor.
(f) If, between the date of this Agreement and the deemed Effective Time, either (i) the outstanding shares of Company Common Stock associated with such exercise or Company Preferred Stock shall automatically be cancelled andhave been changed into a different number of shares or a different class by reason of any stock dividend, in consideration for such deemed exercise and automatic cancellationsubdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event, or (ii) the holder number of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon conversion of each share of Company Preferred Stock shall have been changed pursuant to contract, an anti-dilution adjustment provision contained in the exercise Company’s certificate of such Vested Company Option and in full satisfaction incorporation or otherwise, the calculation of the rights of the holder with respect thereto, an amount in cash equal Exchange Ratio shall be correspondingly adjusted to the positive resultextent necessary to reflect such stock dividend, if anysubdivision, reclassification, recapitalization, split, combination or exchange of shares, change in conversion ratio or such similar event.
(g) If, between the Merger Option Consideration less any required withholding date of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, this Agreement and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option , the outstanding and unexercised for which an Option Consent is not obtained immediately prior shares of SWAT Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event, the calculation of the Exchange Ratio shall be correspondingly adjusted to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelledextent necessary to reflect such stock dividend, without any exercise thereof and no payment subdivision, reclassification, recapitalization, split, combination or distribution shall be made with respect theretoexchange of shares, or such similar event.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Security With Advanced Technology, Inc.)
Conversion of Shares. (a) At Subject to Sections 1.6, 1.9(c) and Section 1.10, 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 shareholder of the Company:
(i) any shares each share of Company Common Stock held by the Company, any wholly-owned Subsidiary common stock of the Company (or held in "Company Common Stock") outstanding immediately prior to the Effective Time, shall be cancelled and extinguished without any conversion thereof (it being understood that the Merger Consideration does not exceed the aggregate liquidation preference of the Senior Preferred, and thus, by the terms of the Company’s treasury's Articles of Incorporation, the common stock is not entitled to be converted into the right to receive any portion of the Merger Consideration after the Effective Time);
(ii) each share of Series A Convertible Preferred Stock of the Company ("Series A Preferred Stock") outstanding immediately prior to the Effective Time, Parent, shall be shall be cancelled and extinguished without any conversion thereof (it being understood that the Merger SubConsideration does not exceed the aggregate liquidation preference of the Senior Preferred, and thus, by the terms of the Company's Articles of Incorporation, the common stock is not entitled to be converted into the right to receive any other wholly-owned Subsidiary portion of Parent, the Merger Consideration after the Effective Time);
(iii) each share of Series B Convertible Preferred Stock of the Company ("Series B Preferred Stock") outstanding immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect theretoconverted into the right to receive the Series B Amount (as defined below);
(iiiv) subject to Sections 2.6(b), 2.8 and 2.9, each share of Series C Convertible Preferred Stock of the Company Common Stock ("Series C Preferred Stock") outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interestSeries C Amount (as defined below);
(iiiv) each share of Series D Convertible Preferred Stock of the common stock, $0.01 par value per share, Company ("Series D Preferred Stock") outstanding immediately prior to the Effective Time shall be converted into the right to receive an amount equal to the Series D Amount (as defined below);
(vi) each share of Series E Convertible Preferred Stock of the Company ("Series E Preferred Stock") outstanding immediately prior to the Effective Time shall be converted into the right to receive an amount equal to the Series E Amount (as defined below); and
(vii) each unit of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to At the contrary including the definitions of Common Stock Per Share Amount and Merger Option ConsiderationEffective Time, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the any shares of capital stock of the Company that are not owned by the Company as set forth treasury stock shall be canceled and extinguished without any conversion thereof.
(c) For purposes of this Agreement:
(i) The "Merger Consideration" shall mean (A) 700,000 shares of common stock of Parent ("Parent Common Stock") or (B) in the event the Note Holders (as defined in Section 3.6, and/or 4.5(b)) have refused to release their respective rights to receive the Change of Control Premium (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth defined in Section 3.64.5(b)) in accordance with Section 4.5(b), the consideration to be delivered in respect difference between (1) 700,000 shares of a share of Company Parent Common Stock and (2) a Vested Company Option for which an Option Consent has been obtained (and accordinglynumber of shares of Parent Common Stock, pursuant valued at the Designated Parent Stock Price, equal to Section 2.6) shall be adjusted downward the value of the Change of Control Premium as appropriateof the Closing Date.
Appears in 1 contract
Conversion of Shares. (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 Companyparty:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, Each Share issued and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time (including Shares issued in connection with the Conversion, but other than any Shares which are held by any wholly owned Subsidiary of the Company or in the treasury of the Company or held by Parent, Merger Sub or any other Affiliate of Parent, all of which shall cease to be outstanding and not described be canceled and none of which shall receive any payment with respect thereto) and all rights in Section 2.6(a)(i) shall automatically respect thereof shall, by virtue of the Merger and without any action on the part of the holder thereof, forthwith cease to exist and be converted into and represent the right to receive an amount in cash (the “Common Stock Per Share AmountMerger Consideration”), without interest;
, equal to the sum of (iiiA) each share the quotient obtained by dividing (x) the Final Purchase Price, minus the aggregate amount of all Option Payments by (y) the common stock, $0.01 par value per share, number of Merger Sub Shares outstanding immediately prior to the Effective Time (other than any Shares which are held by any wholly owned Subsidiary of the Company or in the treasury of the Company or held by Parent, Merger Sub or any other Affiliate of Parent, all of which shall cease to be outstanding and be canceled and none of which shall receive any payment with respect thereto), plus (B) all amounts, if any, without duplication, payable in respect of such Share from the Purchase Price Adjustment Escrow Amount and the Expense Holdback Amount, in each case, pursuant to Section 2.9(d), and the Indemnification Escrow Amount pursuant to Section 7.5(d).
(b) Each share of common stock, par value $0.01 per share, of Merger Sub (“Merger Sub Common Stock”), issued and outstanding immediately prior to the Effective Time, shall be converted into one fully paid and nonassessable share of common stock stock, par value $0.01 per share, of the Surviving Corporation;
(iv) subject to Section 2.6(b). As of the Effective Time, each Vested Company Option the shares of Merger Sub Common Stock shall no longer be outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised canceled and shall cease to exist, and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder or holders of such Vested Company Option shares shall be entitled cease to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the have any rights of the holder with respect thereto, an amount except the right to receive shares of common stock in cash equal the Surviving Corporation to the positive resultbe issued in consideration therefor as provided herein, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at without interest. After the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option , Parent shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions holder of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights all of the issued and outstanding shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation’s common stock.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of ParentBuyer, Merger Sub, the Company or the holders of any stockholder of the Companysecurities described below:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one (1) validly issued, fully paid and non-assessable share of common stock stock, par value $0.01 per share, of the Surviving Corporation;.
(ivb) Except as otherwise provided herein, the Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than (x) shares of Company Capital Stock cancelled pursuant to Section 1.2(c)) and (y) Dissenting Shares) shall be converted into the right to receive, upon delivery and surrender of the Certificates formerly representing the issued and outstanding Company Capital Stock, the Estimated Merger Consideration (subject to Section 2.6(bSections 2.2, 2.3 and 2.4), and such share of Company Capital Stock after such conversion shall automatically be cancelled and retired and shall cease to exist.
(c) Each share of Company Capital Stock held in the treasury of the Company and each Vested share of Company Option outstanding and unexercised for which an Option Consent is obtained Capital Stock owned or held, directly or indirectly, by the Company immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option retired and shall be entitled cease to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, exist without any exercise conversion thereof and no payment of cash or any other consideration or distribution shall be made with respect thereto.
(bd) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights As of the shares Effective Time, each holder of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a certificate representing a share of Company Common Capital Stock and (each such certificate, a Vested Company Option for “Certificate”) (other than a Certificate representing Dissenting Shares, the treatment of which an Option Consent has been obtained (and accordingly, pursuant to is addressed in Section 2.61.3) 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, a portion, without interest, in accordance with this Agreement, of the Estimated Merger Consideration (subject to Sections 2.2, 2.3 and 2.4). Surrendered Certificates shall forthwith be adjusted downward as appropriatecancelled by the Surviving Corporation.
(e) None of the Surviving Corporation, Buyer, or Merger Sub shall be liable to any Person in respect of amounts paid to a public official to the extent required under any applicable abandoned property, escheat or similar Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Red White & Bloom Brands Inc.)
Conversion of Shares. (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 the holders of the CompanyCompany Common Stock:
(ia) any each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than shares of Company Common Stock to be cancelled pursuant to Section 2.3(b) (the “Excluded Shares”), shall be converted into the right to receive 2.4050 (the “Exchange Ratio”) fully paid and nonassessable shares of Parent Common Stock (subject to the following sentence, the “Merger Consideration”). For the avoidance of doubt, shares of Company Common Stock held by the Company, Company as treasury stock or owned by any wholly-owned Subsidiary of the Company will not be considered to be “issued and outstanding” for purposes of this Section 2.3(a);
(or b) each share of Company Common Stock held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time by the Company as treasury stock or owned by any Subsidiary of the Company shall be cancelled without any conversion thereof cancelled, and no payment or distribution consideration shall be made paid with respect thereto;
(iic) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share all of the shares of common stock, $0.01 par value per share, stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock, par value $0.01 per share, of the Surviving Corporation and shall constitute the only outstanding share of capital stock of the Surviving Corporation;; and
(ivd) subject to Section 2.6(b), each Vested all outstanding shares of Company Option Common Stock and common stock of Merger Sub shall no longer be outstanding and unexercised for which an Option Consent is obtained shall automatically be cancelled and retired and shall cease to exist, and (i) each share of Company Common Stock that was immediately prior to the Effective Time shall automatically be deemed exercised represented by a certificate (each, a “Certificate”) and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to (ii) each uncertificated share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, (an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v“Uncertificated Share”) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained that immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not was registered to a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to holder on the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock transfer books of the Company are not as set forth in Section 3.6, and/or (iiother than Excluded Shares) shall thereafter represent only the rights (whether options, warrants or right to receive the Merger Consideration and the right to receive any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, dividends pursuant to Section 2.62.4(f) shall and any cash in lieu of any fractional shares of Parent Common Stock pursuant to Section 2.7, in each case to be adjusted downward as appropriateissued or paid in accordance with Section 2.4, without interest.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
Conversion of Shares. (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 by the Company, Company or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, ) immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretopaid in exchange therefor;
(ii) any shares of Company Common Stock held by the Guarantor, Parent, Merger Sub or any other Affiliates of the Guarantor immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be paid in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii)” above and subject to Sections 2.6(b), 2.8 Section 1.5(b) and 2.9Section 1.10, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive $32.10 in cash (the “Per Share Merger Price”), without interest (for purposes hereof, each outstanding Share of Company Common Stock Per Share Amountwhich was issued as part of a Company Stock Award and which is restricted shall be deemed vested (and therefore free of such restrictions) as of, without interest;and effective upon, the Effective Time); and
(iiiiv) each share of the common stock, $0.01 0.001 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one share of common stock stock, $0.001 par value per share, of the Surviving Corporation;.
(ivb) subject to Section 2.6(b)If, each Vested Company Option outstanding during the period commencing on the Agreement Date and unexercised for which an Option Consent is obtained immediately prior to ending at the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Common Stock associated with such exercise shall automatically be cancelled andare changed into a different number or class of shares by reason of any stock split, in consideration for such deemed exercise 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 and automatic cancellation, any other term of this Agreement dependent on the holder of such Vested Company Option Per Share Merger Price shall be entitled appropriately adjusted to receive, with respect to each share provide the holders of Company Common Stock issuable upon the exercise same economic effect as contemplated by this Agreement prior to such action and as so adjusted shall, from and after the date of such Vested Company Option and in full satisfaction of event, be the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option ConsiderationPrice or such other dependent term, the maximum aggregate consideration subject to be paid pursuant to further adjustment in accordance with this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatesentence.
Appears in 1 contract
Conversion of Shares. (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 Companyholder thereof:
(ia) any shares each share of Company Common Stock held by the Companycommon stock, any wholly-owned Subsidiary par value $0.0625, of the Company ("Company Common Stock") held by the Company as treasury stock or held in the Company’s treasury), Parent, Merger Sub, and owned by ---------------------- Jacobs or any other wholly-owned Subsidiary subsidiary of Parent, Jacobs immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled, retired, and shall cease to exist, and no payment or distribution shall be made with respect thereto;
(iib) subject each share of common stock of Merger Subsidiary issued and outstanding immediately prior to Sections 2.6(b)the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with the same rights, 2.8 powers and 2.9, privileges as the shares so converted and such shares in the aggregate shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and
(c) each share of Company Common Stock outstanding immediately prior to the Effective Time and not described ("Shares") shall, except as otherwise provided in Section 2.6(a)(i------ 1.2
(a) shall automatically or as provided in Section 1.6 with respect to Shares as to which appraisal rights have been exercised (collectively, the "Excluded Shares"), be --------------- converted into the right to receive the Common Stock Per Share Amount(A) a cash payment per Share, without interest;
, equal to (iiix) each share the total of (1) one hundred and ninety-eight million dollars ($198,000,000), minus (2) the common stockEscrow Amount (as defined in Section 1.4(a)), $0.01 par value per shareplus (3) the Aggregate Options Exercise Price (as defined below), plus (4) the Aggregate Redeemed Shares Price (as defined below) and plus (5) the Aggregate Flexi-Trust Debt (as defined in Section 1.3(b)), divided by (y) the total of Merger Sub (1) the number of Shares issued and outstanding immediately prior to the Effective Time shall be converted into one share Time, plus (2) the number of common stock shares of the Surviving Corporation;
Company Common Stock issuable upon exercise of the Company Options (ivas defined in Section 1.7) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and plus (3) the deemed shares number of Redeemed Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained Shares immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock "Initial Per Share Amount and ----------------- Merger Option Consideration"), the maximum aggregate consideration (B) an additional pro rata amount of cash, payable as -------------------- set forth in Section 1.5, equal to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights a portion of the shares Deferred Consideration (as defined in Section 1.5(a)(viii)), if any, determined in accordance with Section 1.5, and (C) an additional pro rata amount of capital stock of the Company are not cash, payable as set forth in Section 3.61.4, and/or (ii) the rights (whether options, warrants or any other rights) equal to acquire capital stock a portion of the Company are not Opportunity Premium Payment (as set forth defined below) and/or the Escrow Amount (as defined in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate1.4(a)).
Appears in 1 contract
Samples: Merger Agreement (Jacobs Engineering Group Inc /De/)
Conversion of Shares. (a) At the Effective Time, each issued and outstanding share of the common stock, par value $.001 per share, of Merger Sub shall, by virtue of the Merger and without any further action on the part of Parent, Merger Sub or the Company, be converted into one fully paid and non-assessable share of common stock of the Surviving Corporation.
(b) At the Effective Time, each share of common stock, par value $.001 per share, of the Company, ("Company Common Stock"), issued and outstanding immediately prior to the Effective Time (individually, a "Share" and collectively, the "Shares") (other than Shares to be cancelled in accordance with Section 2.1(c) hereof or stockholders exercising appraisal rights under DGCL Section 262 (the "Dissenting Shares")) shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or any stockholder holder thereof, be converted into the right to receive 0.181818 shares of Parent Common Stock (referred to herein as the "Exchange Ratio," and all such shares of Parent Common Stock issued pursuant to this Section 2.1(b), together with any cash in lieu of fractional shares of Parent Common Stock to be paid pursuant to Section 2.7, being referred to herein as the "Merger Consideration") payable, without interest, to the holder of such Company Common Stock upon surrender, in the manner provided in this Article II, of the Company:certificate that formerly evidenced such Company Common Stock. At the Effective Time, the total number of issued and outstanding shares of Company Common Stock shall not exceed 49,500,000 shares. At the Effective Time, all Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefore upon surrender of such certificate in accordance with this Article II.
(ic) any shares At the Effective Time each Share of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Subor any of their subsidiaries shall be cancelled and extinguished without any consideration therefor.
(d) The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or Company Common Stock) reorganization, recapitalization, reclassification or other like change with respect to Parent Common Stock or Company Common Stock occurring on or after the date hereof and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (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 Companythereof or any other Person:
(a) except as otherwise provided in Section 2.03(b), Section 2.03(c), Section 2.03(d), or Section 2.05, each Share issued and outstanding immediately prior to the Effective Time shall (i) be converted automatically into the right to receive the Per Share Amount in cash, without interest (the “Merger Consideration”) and (ii) upon conversion thereof in accordance with this Section 2.03(a), cease to be outstanding and shall automatically be canceled and cease to exist and each holder of a Certificate representing any shares of Company Common Stock held such Shares shall have only the right to receive the Merger Consideration with respect thereto in accordance with Section 2.04;
(b) each Share owned by the CompanyParent, Merger Sub or any wholly-other direct or indirect wholly owned Subsidiary of the Company (Parent or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, Sub immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and cease to exist, and no payment or distribution consideration shall be made paid or delivered in exchange therefor and each holder of a Certificate representing any such Shares shall cease to have any rights with respect thereto;
(iic) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding Share held in the Company’s treasury immediately prior to the Effective Time shall be canceled and not described cease to exist, and no consideration shall be paid or delivered in Section 2.6(a)(i) exchange therefor and each holder of a Certificate representing any such Shares shall automatically be converted into the right cease to receive the Common Stock Per Share Amount, without interesthave any rights with respect thereto;
(iiid) each Share owned by any direct or indirect wholly owned Subsidiary of the Company immediately prior to the Effective Time shall be canceled and cease to exist, and no consideration shall be paid or delivered in exchange therefor and each holder of a Certificate representing any such Shares shall cease to have any rights with respect thereto; and
(e) each share of the common stock, par value $0.01 par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one fully paid, nonassessable share of common stock stock, par value $0.01 per share, of the Surviving Corporation;
Corporation (iv) subject to Section 2.6(bthe “Surviving Corporation Common Stock”), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at constitute the Effective Time;
(v) each Vested Company Option only outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not Surviving Corporation as set forth in Section 3.6, and/or (ii) of immediately following the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateEffective Time.
Appears in 1 contract
Samples: Merger Agreement (SecureWorks Corp)
Conversion of Shares. (a) At Each Share issued and outstanding immediately prior to the Effective TimeTime (other than shares of Company Common Stock to be cancelled as set forth in Section 2.6(b) and 2.6(c)) shall, by virtue of the Merger and without any further action on the part of Parentthe holder thereof, be converted into, exchanged for and represent the right to receive an amount equal to the Per Share Amount in cash (the "Merger SubConsideration"), payable, without interest, to the Company or any stockholder holder of such Share, upon surrender, in the manner described below, of the Company:certificate that formerly evidenced such Share.
(ib) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, Each Share issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall which is then owned beneficially or of record by Parent or any Subsidiary of Parent shall, by virtue of the Merger and without any action on the part of the holder thereof, be cancelled and retired and cease to exist, without any conversion thereof and no payment or distribution shall be made with respect thereto;thereof.
(iic) subject Each Share held in Company's treasury immediately prior to Sections 2.6(b)the Effective Time shall, 2.8 by virtue of the Merger, be cancelled and 2.9retired and cease to exist, each share without any conversion thereof.
(d) Notwithstanding anything in this Section 2.6 to the contrary, shares of Company Common Stock which are issued and outstanding immediately prior to the Effective Time and which are held by stockholders of Company who have not described voted such shares in Section 2.6(a)(ifavor of the Merger and who shall have properly exercised their rights of appraisal for such shares in the manner provided by the GCL (the "Dissenting Shares") shall automatically not be converted into or be exchangeable for the right to receive the Common Stock Per Share AmountMerger Consideration, unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost his right to appraisal and payment, as the case may be. If such holder shall have so failed to perfect or shall have effectively withdrawn or lost such right, his shares shall thereupon be deemed to have been converted into and to have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration, without interest;
any interest thereon. Company shall give Parent prompt notice of any Dissenting Shares (iiiand shall also give Parent prompt notice of any withdrawals of such demands for appraisal rights) each share and Parent shall have the right to direct all negotiations and proceedings with respect to any such demands. Neither Company nor the Surviving Corporation shall, except with the prior written consent of Parent, voluntarily make any payment with respect to, or settle or offer to settle, any such demand for appraisal rights. Stockholders of Company who shall have perfected their right of appraisal and not withdrawn or otherwise lost such right of appraisal, shall be entitled to receive payment of the common stock, $0.01 par appraised 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated held by them in accordance with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder provisions of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction Section 262 of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoGCL.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Digex Inc)
Conversion of Shares. (a) At Subject to the provisions of this Article 3, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger SubCompany, Sub or the stockholders of any of the foregoing, the Company or any stockholder shares of the Companyconstituent corporations shall be converted as follows:
(i) any shares Each share of Company Sub Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, issued and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall cease to be outstanding and shall be converted into one share hundred (100) shares of common stock stock, par value $0.01 per share, of the Surviving Corporation;.
(ivii) subject Subject to Section 2.6(bSections 3.5 and 3.6, each share of Company Common Stock held by an "accredited investor" (as defined in Rule 501 of the Securities Act) who makes certain investor representations to Company (a "Qualified Investor") in the Investor Letter (the "Investor Letter"), each Vested excluding shares held by any Company Option Entity or any Parent Entity and excluding shares held by stockholders who perfect their statutory appraisal rights, issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time (but after conversion of any Company Preferred Stock that is to be converted immediately prior to the Effective Time and after exercise of any Company Options that are to be exercised immediately prior to the Effective Time) shall automatically cease to be deemed exercised outstanding and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled converted into and exchanged for the right to receivereceive an amount of cash equal to the sum of (1) the Accredited Per Share Amount, without interest thereon, plus (2) the Escrow Per Share Amount, with respect interest thereon as described in Section 4.3 minus (3) any required withholding of Taxes (the "Accredited Merger Consideration").
(iii) Subject to Sections 3.5 and 3.6, each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as held by a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent stockholder that is not obtained a Qualified Investor, excluding shares held by any Company Entity or any Parent Entity and excluding shares held by stockholders who perfect their statutory appraisal rights, issued and outstanding immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding but after conversion of any Company Option Preferred Stock that is not a Vested to be converted immediately prior to the Effective Time and after exercise of any Company Option Options that are to be exercised immediately prior to the Effective Time) shall cease to be outstanding and shall be automatically cancelledconverted into and exchanged for the right to receive an amount of cash equal to (1) the Other Per Share Amount, without interest thereon, minus (2) any exercise thereof required withholding of Taxes (the "Non-Accredited Merger Consideration" and no payment or distribution shall be made together with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Accredited Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate"Cash Merger Consideration").
Appears in 1 contract
Samples: Merger Agreement (West Corp)
Conversion of Shares. (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 shareholder of the Company:
(i) any all shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and ) or any other wholly-owned Subsidiary of Parent, its Subsidiaries immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretopaid in exchange therefor;
(ii) all shares of Company Common Stock held by Parent, Merger Sub or any Subsidiary of Parent immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be paid in exchange therefor;
(iii) except as provided in clauses (i) and (ii) above and subject to Sections 2.6(b), 2.8 and 2.9Section 2.8, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(each a “Company Share”) shall automatically be converted into the right to receive cash in the Common Stock amount of $2.45 (the “Per Share AmountMerger Consideration”), without interest;less any required withholding Taxes if any, as described in Section 2.8(e). As of the Effective Time, all Company Shares shall no longer be outstanding and shall automatically be canceled and cease to exist, and the holders immediately prior to the Effective Time of Company Shares shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration to be paid in consideration therefor upon surrender of such Company Shares in accordance with Section 2.8; and
(iiiiv) each share of the common stock, $0.01 no par value per sharevalue, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one (1) share of common stock stock, no par value, of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything If, during the period commencing on the Agreement Date and ending at the Effective Time, the outstanding Company Shares are changed into a different number or class of shares (including by reason of any reclassification, recapitalization, stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, or other similar transaction, but excluding any change that results from any exercise of Company Options to purchase Company Shares granted under the contrary including Company’s stock option or compensation plan or arrangements), the definitions of Common Stock Per Share Amount Merger Consideration and Merger Option Consideration, the maximum aggregate consideration to be paid any other amounts payable pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) Agreement shall be adjusted downward as appropriateappropriately adjusted.
Appears in 1 contract
Samples: Merger Agreement (Covisint Corp)
Conversion of Shares. (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 the holders of the CompanyCompany Common Stock:
(ia) any each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than shares of Company Common Stock to be cancelled pursuant to Section 2.3(b) (the “Excluded Shares”), shall be converted into the right to receive 2.4050 (the “Exchange Ratio”) fully paid and nonassessable shares of Parent Common Stock (subject to the following sentence, the “Merger Consideration”). For the avoidance of doubt, shares of Company Common Stock held by the Company, Company as treasury stock or owned by any wholly-owned Subsidiary of the Company will not be considered to be “issued and outstanding” for purposes of this Section 2.3(a);
(or b) each share of Company Common Stock held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time by the Company as treasury stock or owned by any Subsidiary of the Company shall be cancelled without any conversion thereof cancelled, and no payment or distribution consideration shall be made paid with respect thereto;
(iic) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share all of the shares of common stock, $0.01 par value per share, stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock, par value $0.01 per share, of the Surviving Corporation and shall constitute the only outstanding share of capital stock of the Surviving Corporation;; and
(ivd) subject to Section 2.6(b), each Vested all outstanding shares of Company Option Common Stock and common stock of Merger Sub shall no longer be outstanding and unexercised for which an Option Consent is obtained shall automatically be cancelled and retired and shall cease to exist, and (i) each share of Company Common Stock that was immediately prior to the Effective Time shall automatically be deemed exercised represented by a certificate (each, a “Certificate”) and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to (ii) each uncertificated share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, (an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v“Uncertificated Share”) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained that immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not was registered to a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to holder on the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock transfer books of the Company are not as set forth in Section 3.6, and/or (iiother than Excluded Shares) shall thereafter represent only the rights (whether options, warrants or right to receive the Merger Consideration and the right to receive any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, dividends pursuant to Section 2.62.4(f) shall and any cash in lieu of any fractional shares of Parent Common Stock pursuant to Section 2.7, in each case to be adjusted downward as appropriateissued or paid in accordance with Section 2.4, without interest.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Conversion of Shares. (a) At the Effective Time, each outstanding share of common stock of Merger Sub shall, by virtue of the Merger and without any further action on the part of Parentthe Company, PCA or Merger Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one fully paid and non-assessable share of common stock of the Surviving Corporation;.
(ivb) subject to Section 2.6(bAt the Effective Time, each share of the Company's Series A Preferred Stock and Series B Preferred Stock (collectively, "COMPANY PREFERRED STOCK"), each Vested Company Option issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically (individually, a "PREFERRED SHARE" and collectively, the "PREFERRED SHARES") ") (other than Dissenting Shares (as hereinafter defined)) shall, by virtue of the Merger and without any action on the part of PCA, the Company or Merger Sub or any holder thereof, be deemed exercised converted into and be exchangeable for the deemed right to receive one and one-half (1.5) fully paid and non-assessable shares of Company PCA Common Stock associated with such exercise shall automatically be cancelled andStock.
(c) At the Effective Time, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon Company's common stock, par value $0.000001 (the exercise of such Vested Company Option "COMPANY COMMON STOCK"), issued and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically (individually, a "COMMON SHARE" and collectively, the "COMMON SHARES" and together with the Preferred Shares, the "SHARES") (other than Dissenting Shares (as hereinafter defined)) shall, by virtue of the Merger and without any action on the part of PCA or the Company or any holder thereof, be terminated; andconverted into and be exchangeable for the right to receive one and one-half (1.5) (the "EXCHANGE RATIO") fully paid and non-assessable shares of PCA Common Stock. All such shares of PCA Common Stock issued pursuant to SECTIONS 2.1(B) and 2.1(C) are referred to herein as the "MERGER CONSIDERATION."
(vid) each If, between the date of this Agreement and the Effective Time, the outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions shares of PCA Common Stock Per Share Amount and Merger Option Considerationshall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights calculation of the number of shares of capital stock of PCA Common Stock for which the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be exchanged shall be correspondingly adjusted downward as appropriateto the extent necessary to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or such similar event.
Appears in 1 contract
Conversion of Shares. The Merger Agreement provides that at the Effective Time, each outstanding Share will be converted into the right to receive the Merger Consideration, other than (a) Shares held by the Parent, Purchaser or any wholly owned subsidiary of Parent or Purchaser, or in the treasury of the Company, or by any wholly owned subsidiary of the Company, which Shares, by virtue of the Merger and without any action on the part of the holder thereof, will be canceled and retired and will cease to exist with no payment being made with respect thereto, and (b) Shares held by stockholders who exercise their statutory appraisal rights as described below. At the Effective Time, each issued and outstanding share of capital stock of Purchaser will be converted into one validly issued, fully paid and nonassessable share of Common Stock, par value $.001 per share, of the Surviving Corporation. The Merger Agreement further provides that any Shares outstanding immediately before the Effective Time and held by a stockholder who has not voted in favor of or consented to the Merger in writing and who complies with all the provisions of the DGCL concerning the right of holders of shares of capital stock to dissent from the Merger and require appraisal of their shares (a "Dissenting Stockholder") will not be converted into the right to receive the Merger Consideration as described above but instead will be converted, at the Effective Time, by virtue of the Merger and without any further action on action, into the part of Parent, Merger Sub, the Company or right to receive any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior consideration that may be determined to be due to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject Dissenting Stockholder pursuant to Sections 2.6(b)the DGCL; provided, 2.8 and 2.9, each share of Company Common Stock that Shares outstanding immediately prior to before the Effective Time and not described held by a Dissenting Stockholder who, after the Effective Time, fails to perfect or withdraws or loses the Dissenting Stockholder's right to appraisal, in Section 2.6(a)(i) shall automatically either case pursuant to the DGCL, will be deemed to be converted as of the Effective Time into the right to receive the Common Stock Per Share AmountMerger Consideration, without interest;
(iii) each share interest or dividends thereon. The Company 21 24 may not, without the prior written consent of the common stockParent, $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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, voluntarily make any payment with respect to, or settle or offer to each share settle, any demands for appraisal of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000Shares. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.Stockholders
Appears in 1 contract
Samples: Offer to Purchase (FMST Acquisition)
Conversion of Shares. (a) At All Shares held in the treasury of the Company (the "Excluded -------- Shares") shall be canceled and shall cease to exist as of 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:consideration being payable therefore.
(ib) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held Notwithstanding anything in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior this Agreement to the Effective Time shall be cancelled without any conversion thereof contrary, Shares which would otherwise constitute Elected Cash Shares or Non-Elected Cash Shares hereunder, which are issued and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and which are held by stockholders who did not described vote in favor of the Merger and who comply with all of the relevant provisions of Section 2.6(a)(i262 of the DGCL (the "Dissenting Shares") shall automatically not be converted into or be exchangeable for the ----------------- right to receive the Cash Merger Price (as defined below), but instead shall be converted into the right to receive payment from the Surviving Corporation with respect to such Dissenting Shares in accordance with the DGCL, unless and until such holders shall have effectively withdrawn or lost their rights to appraisal under the DGCL. If any such holder shall have effectively withdrawn or lost such right, such holder's Shares shall be converted into the right to receive the Common Stock Per Share AmountCash Merger Price (as defined below). The Company shall give prompt notice to the Investor of any demands received by the Company for appraisal of Shares, without interest;and the Investor shall have the right 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 the Investor, make any payment with respect to, or settle or offer to settle, any such demands.
(iiic) each share By virtue of the common stockMerger, $0.01 par value per share, of Merger Sub each Share issued and outstanding immediately prior to the Effective Time Time, other than Excluded Shares and Dissenting Shares, shall be retained or converted into the right to receive cash as follows:
(i) Each Share that is an Elected Retained Share and each Share that is a Non-Elected Retained Share (as defined in Section 2.3(c)) (in -------------- either case, a "Retained Share") shall be retained by the holder thereof -------------- following the Effective Time, shall remain outstanding and shall represent one share of common stock Common Stock, par value $.001 per share, of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(viii) each outstanding Company Option Each Share that is not an Elected Cash Share and each Share that is a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
Non-Elected Cash Share (b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth defined in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.62.3(b)) shall be adjusted downward as appropriate.-------------- converted into the right to receive from the Surviving Corporation $25 in cash (the "Cash Merger Price"). -----------------
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parentthe holder thereof, Merger Sub, the Company or any stockholder of the Company:
(i) any shares each share of Company Ignyta Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
converted into one (1) validly issued, fully paid and non-assessable share of Ignyta Operating Common Stock; (ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company security convertible into or exercisable or exchangeable for Ignyta Common Stock issued and outstanding immediately prior to the Effective Time under the Ignyta, Inc. 2014 Incentive Award Plan (the “Ignyta 2014 Plan”), the Amended and not described in Section 2.6(a)(iRestated 2011 Stock Incentive Plan (the “Ignyta 2011 Plan”) and the Ignyta, Inc. Employment Inducement Incentive Plan (the “Ignyta Inducement Plan” and, together with the Ignyta 2014 Plan and the Ignyta 2011 Plan, the “Ignyta Plans”) shall automatically be converted cancelled and converted, exercised or exchanged, upon the same restrictions, terms and conditions, into the an option to purchase or other right to receive acquire, upon the same terms and conditions, the number of shares of Ignyta Operating Common Stock Per Share Amount, without interest;
that is equal to the number of shares of Ignyta Common Stock that the holder would have received had the holder exercised such option to purchase or other right to acquire in full immediately prior to the Effective Time (whether or not such option to purchase or other right to acquire was then exercisable) and the exercise price per share or conversion price or ratio per share under each of said options to purchase or other rights to acquire shall be the exercise price per share or conversion price or ratio per share thereunder immediately prior to the Effective Time; (iii) the shares of Ignyta Common Stock that remain available for issuance under the Ignyta Plans, if any, including without limitation any such shares that are added back to the authorized share limit at any time by virtue of forfeitures, surrenders or otherwise, shall be cancelled and converted into shares of Ignyta Operating Common Stock, such that all awards under the Ignyta Plans from and after the Effective Time shall relate to shares of Ignyta Operating Common Stock rather than shares of Ignyta Common Stock; (iv) each share of the common stock, $0.01 par value per share, of Merger Sub warrant convertible into or exercisable or exchangeable for Ignyta Common Stock issued and outstanding immediately prior to the Effective Time shall be converted cancelled and converted, upon the same restrictions, terms and conditions, into one share the option to purchase or other right to acquire, upon the same terms and conditions, the number of common stock shares of Ignyta Operating Common Stock that is equal to the Surviving Corporation;
(iv) subject number of shares of Ignyta Common Stock that the holder would receive had the holder exercised such right to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained acquire in full immediately prior to the Effective Time shall automatically be deemed exercised (whether or not such right to acquire was then exercisable) and the deemed shares exercise price per share or conversion ratio per share under each of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option said option to purchase or other right to acquire shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal price per share or conversion price or ratio per share thereunder immediately prior to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
; and (v) each Vested Company Option share of Ignyta Operating Common Stock issued and outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option and held by Ignyta shall be automatically cancelled, without any exercise thereof consideration being issued or paid therefor, and shall resume the status of authorized and unissued shares of Ignyta Operating Common Stock, and no payment shares of Ignyta Operating Common Stock or distribution other securities of the Surviving Corporation shall be made with issued in respect thereto.
(b) Notwithstanding anything thereof. After the Effective Time, the Surviving Corporation shall reflect in its stock ledger the number of shares of Ignyta Operating Common Stock to which each stockholder of Ignyta is entitled pursuant to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateterms hereof.
Appears in 1 contract
Samples: Merger Agreement (Ignyta, Inc.)
Conversion of Shares. (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 the holders of any stockholder of the Companyfollowing securities:
(ia) any shares of Company Common Stock held by the Companyexcept for Treasury Shares, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, Dissenting Shares and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9Excluded Shares, each share of Company Common Stock outstanding immediately prior to the Effective Time issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and shall become the right to a number of Merger Shares and a portion of the Cash Merger Consideration in respect of the Estimated Merger Consideration, Underpayment Amount (if any) and the Earn-Out Payment (if any), in each case as calculated in accordance with this Agreement and the Allocation Schedule and, as of the Effective Time, all such shares of Company Common 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 a number of Merger Shares and a portion of the Cash Merger Consideration in respect of the Estimated Merger Consideration, Underpayment Amount (if any) and the Earn-Out Payment (if any), in each case as calculated in accordance with this Agreement and the Allocation Schedule;
(b) each share of Company Common Stock held by the Company (collectively, “Treasury Shares”) immediately prior to the Effective Time shall be canceled without any conversion thereof and shall cease to exist, and no consideration shall be delivered or receivable with respect thereto;
(c) each share of Company Common Stock held by any Subsidiary of either the Company or Parent (other than the Merger Sub) immediately prior to the Effective Time (“Excluded Shares”) shall be converted into such number of shares of stock of the Surviving Company such that each such Subsidiary owns the same percentage of the outstanding capital stock of the Surviving Company immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time;
(d) each Warrant issued and outstanding immediately prior to the Effective Time shall be converted into and shall become the right to receive a number of Merger Shares and a portion of the Cash Merger Consideration in respect of the Estimated Merger Consideration, Underpayment Amount (if any) and the Earn-Out Payment (if any), in each case as if the Warrant were fully exercised and the Warrantholder received the number of Company Common Stock receivable upon such exercise immediately prior to the Effective Time, in each case as calculated in accordance with this Agreement and the Allocation Schedule; and
(e) each share of capital 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 the Surviving Corporation;
(iv) subject to Section 2.6(b)Company, each Vested Company Option outstanding with the same rights, powers and unexercised for which an Option Consent is obtained immediately prior privileges as the shares so converted and, together with any shares issued pursuant to the Effective Time foregoing Section 2.04(c) shall automatically be deemed exercised and constitute the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option only outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Signify Health, Inc.)
Conversion of Shares. (aA) At and as of 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) each Company Share (on an as-if converted basis) (other than any shares of Company Common Stock held by the Company, any whollyDissenting Share or Buyer-owned Subsidiary Share) shall be automatically converted into the right to receive a number of Buyer Shares equal to the Company Conversion Ratio (or held such amount referred to in this clause (i) is referred to herein as the Company’s treasury"Merger Consideration"), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and Dissenting Share shall -------------------- not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Merger Consideration set forth in clause (i) above, and instead, shall be converted into the right to receive payment from the Surviving Corporation with respect thereto as provided by the California General Corporation Law, unless and until the holder of any such share shall have failed to perfect or shall have effectively withdrawn or lost his right to appraisal and payment in accordance with the provisions of the California General Corporation Law, in which case such share shall not be deemed a Dissenting Share Amountand shall thereupon be deemed, without interest;
as of the Effective Time, to have been cancelled and extinguished and been converted into the right to receive Merger Consideration as set forth in clause (i) above, and (iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise Buyer-owned Share shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, extinguished without any exercise conversion thereof and no payment or distribution shall be made with respect thereto; provided, however, that the Merger Consideration shall be subject -------- ------- to equitable adjustment in the event of any stock split, stock dividend, reverse stock split, or other change in the number of Company Shares outstanding after the date hereof. No Company Share shall be deemed to be outstanding or to have any rights other than those set forth in this(S) 2(d)(v) after the Effective Time. From and after the Effective Time, no shareholder of the Company who has demanded appraisal rights shall be entitled to vote his or its Company Shares for any purpose or to receive payment of dividends or other distributions on his or its Company Shares (except dividends or other distributions payable to shareholders of record at a date prior to the Effective Time). No certificates representing fractional shares of Buyer Shares shall be issued upon the surrender for exchange of Certificates. Instead, there shall be issued one whole Buyer Share for any remaining fraction of a Buyer Share which otherwise would be issuable with respect to a Certificate pursuant to application of this subsection. For purposes of carrying out the intent of the foregoing sentence, Buyer may aggregate the Certificates of each holder of Certificates so that fractional Buyer Shares due in exchange for multiple Certificates may be combined to yield a number of whole shares thereof plus a single fraction.
(bB) Notwithstanding anything The Buyer shall have the right, in its sole discretion, to substitute cash and/or Buyer Notes in lieu of any portion of the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration Buyer Shares to be paid pursuant to this Section 2.6 is $29,302,000. If issued at the Closing (valuing the Buyer Shares at the Buyer Share Price) if (i) such substitution would not prevent the number, type and rights Merger from qualifying as a reorganization pursuant to Section 368 of the shares Code and (ii) at least 4,800,000 Buyer Shares (as such number of capital stock Buyer Shares is adjusted downward by the number of Buyer Shares issuable upon the exercise or conversion of the Company Stock Rights (other than the options under the Company Option Plan) assumed by the Buyer in the Merger in accordance with (S) 2(d)(vii) below) are not issued as set forth Merger Consideration; provided -------- that in Section 3.6the event of any such substitution, and/or the Buyer shall be required to make such substitution in the following priority: (iiI) the rights initial $3,500,000 of any such substitution shall be in the form of cash (whether options, warrants or any other rights) which under certain circumstances shall be payable to acquire capital stock the holders of the Company Warrants which are not purchased and cancelled in accordance with (S) 2(d)(vii)(E)), (II) the following $7,500,000 of any such substitution shall be in the form of Buyer Notes, and (III) any such substitution in excess of $11,000,000 shall be in the form of cash. The Buyer may exercise such right by issuing a notice to the Company at any time prior to the Effective Time. Any cash or Buyer Notes substituted as set forth described in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained this (and accordingly, pursuant to Section 2.6S) 2(d)(v) shall be adjusted downward pro rata among all the shareholders of the Company in proportion to the aggregate Merger Consideration such shareholders would otherwise be entitled under (S) 2(d)(v)(A). Any cash or Buyer Notes substituted shall also be considered as appropriate"Merger Consideration" for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Therma Wave Inc)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger Merger, and without any further action on the part of Parent, Merger Sub, the Company or the holders of any stockholder of the Companyfollowing securities:
(ia) any shares Each share of Company Common Stock held by the Companycommon stock, any wholly-owned Subsidiary par value $0.01 per share, of the Company (or held in the Company’s treasury), Parent, Merger Sub, "COMPANY COMMON STOCK") issued and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time (excluding those held in the treasury of the Company), and not described all rights in Section 2.6(a)(i) respect thereof, shall automatically forthwith cease to exist and be converted into the right to receive fraction of a share (the "EXCHANGE RATIO") of Parent Common Stock Per Share Amount(1) the numerator of which fraction shall equal 35,000,000, without interest;
and (iii2) each the denominator of which shall be the product obtained by multiplying the Parent Stock Price (as defined below) by the number of Fully Diluted Shares (as defined below) (the "MERGER SHARES"). Each share of the common stock, $0.01 par value per share, of Merger Sub Company Stock issued and outstanding immediately prior to the Effective Time that is restricted or not fully vested shall upon such conversion and exchange have the same restrictions or vesting arrangements applicable to such shares prior to the conversion, subject to any acceleration in vesting or removal of restrictions as a result of this Agreement and the transactions contemplated hereby. An aggregate of ten percent (10%) of the Merger Shares shall be converted into one subject to escrow pursuant to Article X hereof.
(b) As used herein, (i) "PARENT STOCK PRICE" shall mean $79.88125 (it being understood that such price equals the average closing sale price on the Nasdaq National Market of a share of common stock of Parent Common Stock as reported in THE WALL STREET JOURNAL for the Surviving Corporation;
thirty (iv30) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained trading day period ending two (2) days immediately prior to the Effective Time date hereof) and (ii) "FULLY DILUTED SHARES" shall automatically be deemed exercised mean all of the issued and the deemed outstanding shares of Company Common Stock associated with such exercise shall automatically be cancelled and(on an as-converted basis) at the Effective Time, in consideration for such deemed exercise and automatic cancellation, plus the holder number of such Vested Company Option shall be entitled to receive, with respect to each share shares of Company Common Stock issuable upon the exercise of such Vested Company Option all outstanding options (both vested and in full satisfaction of the rights of the holder with respect theretounvested), an amount in cash equal to the positive resultexcluding all options granted after March 3, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto2000.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (About Com Inc)
Conversion of Shares. (a) At the Effective Time, Time by virtue of the -------------------- Merger and without any further action on the part of ParentLogitech Subsidiary, Merger Sub, the Company Sub or any stockholder holder of the CompanyShares:
(ia) any shares Each share of Company Common Stock held by the Company, any wholly-Company as treasury stock and each Share owned Subsidiary of the Company (or held in the Company’s treasury), by Parent, Logitech Subsidiary, Merger Sub, and Sub or any other wholly-owned Subsidiary subsidiary of Parent, Parent immediately prior to the Effective Time shall automatically be cancelled without any conversion thereof cancelled, retired and cease to exist and no payment or distribution shall be made with respect thereto;.
(iib) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, capital 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 so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation;.
(ivc) subject to Except as otherwise provided in Section 2.6(b2.4(a), or as provided in Section 2.5 with respect to Shares as to which appraisal rights shall have been exercised, each Vested Company Option Share outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall be converted into the right to receive (x) the Cash Portion in cash per Share from the Surviving Corporation, without any interest thereon and (y) a fraction of a Parent ADS equal to the Stock Portion (the Cash Portion and the Stock Portion are collectively referred to as the "Merger Consideration"). From and after the Effective Time, all such Shares shall no longer be outstanding and shall automatically be deemed exercised cancelled, retired and cease to exist and each holder of a certificate (a "Certificate") representing any such Shares shall cease to have any rights with respect thereto, except the deemed shares right to receive the Merger Consideration therefor upon the surrender thereof in accordance with Section 2.6 hereof.
(d) No certificates or scrip representing fractional Parent ADSs shall be issued upon the surrender for exchange of Certificates pursuant to this Article II, no dividend or distribution of Parent shall relate to such fractional interests, and such fractional interests will not entitle the owner thereof to vote or to any rights of a holder of Parent ADSs. For purposes of this Section 2.4(d), all fractional Parent ADSs to which a single record holder would be entitled shall be aggregated and calculations shall be rounded to four decimal places. Logitech Subsidiary shall pay to each former holder of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of product obtained by multiplying (x) the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, fractional interest to which shall not be issued, shall both be cancelled such former holder (after taking into account all Shares held at the Effective Time;
Time by such holder) would otherwise be entitled by (vy) each Vested Company Option outstanding and unexercised for which an Option Consent (i) the Average Market Price if the Average Market Price is not obtained immediately prior more than $31.34 or not less than $25.64, (ii) $31.34 if the Average Market Price is more than $31.34, or (iii) $25.64 if the Average Market Price is less than $25.64. Logitech Subsidiary will deposit or will cause to be deposited a sufficient amount of cash with the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall Exchange Agent to cover the payments required to be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate2.4(d).
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, the holder of any common stock of MAI or Merger Sub, the Company or any stockholder of the CompanySubsidiary:
(i) any shares each share of Company Common Stock Stock, par value $0.002 per share, of MAI (the "MAI COMMON Stock") held by the Company, MAI as treasury stock or owned by DHS or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, DHS immediately prior to the Effective Time shall automatically be cancelled canceled and retired without any conversion thereof thereof, and no payment DHS Common Stock or distribution other consideration shall be made with respect theretodelivered in exchange therefor;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company common stock, par value $0.01 per share, of Merger Subsidiary outstanding immediately prior to the Effective Time shall automatically be converted into and become one share of common stock of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and
(iii) each share (each, a "SHARE" and collectively, the "SHARES") of MAI Common Stock outstanding immediately prior to the Effective Time and not described shall, except as otherwise provided in Section 2.6(a)(i) shall 1.02(a)(i), automatically be converted into the right to receive 1.57 shares of fully paid and non-assessable Common Stock, par value $0.001 per share of DHS (the "DHS COMMON STOCK"); provided, however, that the foregoing conversion ratio shall be (A) appropriately adjusted in the event that there shall occur any stock dividend, stock split, combination of shares, recapitalization or other such event relating to the DHS Common Stock Per Share Amountor the MAI Common Stock between the date hereof and the Effective Time, without interest;
(iiiB) each share of proportionately increased or decreased (as the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior case may be) in the event and to the Effective Time shall be converted into one share extent that the number of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company DHS Common Stock associated with such exercise shall automatically be cancelled andshall, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
, be greater than or less than the number of outstanding shares of DHS Common Stock on the date hereof, other than increases resulting from the exercise of options or warrants that are outstanding on the date hereof or hereafter issued in accordance with Section 5.02(f) and from the conversion of any DHS Preferred Stock (v) each Vested Company Option including additional shares of DHS Preferred Stock which may hereafter accrue as in-kind dividends), such that the MAI stockholders receive in the Merger the same percentage of the total outstanding and unexercised for which an Option Consent is not obtained DHS Common Stock (immediately prior after giving effect to the Effective Time shall automatically be terminated; and
Merger) as they would have received had the Merger been consummated on the date of this Agreement, and (vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6C) shall be adjusted downward increased or decreased (as appropriatethe case may be) in the event and to the extent that the number of outstanding shares of MAI Common Stock shall, at the Effective Time, be less than or greater than the number of outstanding shares of MAI Common Stock on the date hereof, other than increases resulting from exercises of options or warrants outstanding on the date hereof or hereafter issued in accordance with Section 5.01(f) and any issuance of MAI Common Stock pursuant to the outstanding Asset Purchase Agreement between MAI and Jaysxx Xxxxxxx, xxch that the MAI stockholders receive in the Merger the same percentage of the total outstanding DHS Common Stock (immediately after giving effect to the Merger) as they would have received had the Merger been consummated on the date of this Agreement.
Appears in 1 contract
Conversion of Shares. (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:,
(ia) any except as otherwise provided in Section 2.3(c) or as provided in Section 2.5 with respect to shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior as to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9which appraisal rights have been exercised, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive in cash from Parent an amount equal to $0.70, without interest (the “Common Stock Per Share Amount, without interestMerger Consideration”);
(iiib) except as otherwise provided in Section 2.3(c) or as provided in Section 2.5 with respect to shares of Company Preferred Stock as to which appraisal rights have been exercised, each share of the common stock, $0.01 par value per share, of Merger Sub Company Preferred Stock outstanding immediately prior to the Effective Time shall be converted into one the right to receive in cash from Parent an amount in cash equal to (i) the Series A Preferred Stock Liquidation Preference (as defined in the Certificate of Designation), without interest and (ii) the product of (x) the number of shares of Company Common Stock that such share of common stock of Company Preferred Stock is convertible into immediately prior to the Surviving Corporation;Effective Time and (y) $0.70 (the “Preferred Stock Merger Consideration”, together with the Common Stock Merger Consideration, the “Merger Consideration”)
(ivc) subject each share of Company Stock held by the Company as treasury stock immediately prior to Section 2.6(b), the Effective Time and each Vested share of Company Option outstanding and unexercised for which an Option Consent is obtained Stock held by the Contributing Stockholders or Parent immediately prior to the Effective Time shall automatically be deemed exercised canceled, and the deemed no payment shall be made with respect thereto; provided, however, that shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option held by Contributing Stockholders shall be entitled canceled pursuant to receive, with respect this subsection (c) only to the extent that the respective Contributing Stockholder owning such shares has agreed to such cancellation; and
(d) each share of Company Common Stock issuable upon the exercise common stock, par value $0.01 per share, and each share of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretopreferred stock, an amount in cash equal to the positive result, if anypar value $0.01 per share, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option Subsidiary outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelledconverted into and become one share of common stock, without any exercise thereof par value $0.01 per share and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions one share of Common Stock Per Share Amount and Merger Option Considerationpreferred stock, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is par value $29,302,000. If (i) the number0.01 per share respectively, type and rights of the 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 Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Boston Restaurant Associates Inc)
Conversion of Shares. (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 CompanyCompany or Parent:
(i) any shares of Company Common Stock held as treasury stock or held or owned by the Company, Merger Sub or any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect thereto;delivered in exchange therefor; and
(ii) subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time (excluding shares to be canceled pursuant to Section 1.5(a)(i), excluding Dissenting Shares and not described in Section 2.6(a)(iafter giving effect to the Pre-Closing Financing, the Preferred Stock Conversion, the Convertible Note Conversion and the Stock Split) shall be automatically be converted solely into the right to receive the a number of shares of Parent Common Stock Per Share Amountequal to the Exchange Ratio (the “Merger Consideration”).
(b) If any shares of Company Common 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 Common Stock 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 its terms.
(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 Common 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 Section 1.8 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.
(iiid) each All Company Options outstanding immediately prior to the Effective Time under the Company Plan shall be treated in accordance with Section 5.5(a).
(e) All Parent Options outstanding immediately prior to the Effective Time under the Parent Stock Plans shall be treated in accordance with Section 5.5(d).
(f) All Parent Warrants outstanding immediately prior to the Effective Time shall be treated in accordance with Section 5.5(e).
(g) Each share of the common stock, $0.01 0.0001 par value per share, of Merger Sub 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, $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;.
(ivh) subject to Section 2.6(b)If, each Vested Company Option outstanding between the time of calculating the Exchange Ratio and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and Time, the deemed outstanding shares of Company Capital Stock or Parent Common Stock associated with 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 Reverse Split or Stock Split to the extent such exercise shall automatically be cancelled andsplit has not been previously taken into account in calculating the Exchange Ratio), in consideration for such deemed exercise and automatic cancellationcombination or exchange of shares or other like change, the holder Exchange Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of Company Capital Stock, Parent Common Stock, Company Options, Parent Options and Parent Warrants with the same economic effect as contemplated by this Agreement prior to such Vested stock dividend, subdivision, reclassification, recapitalization, split (including the Reverse Split or Stock Split to the extent such split has not been previously taken into account in calculating the Exchange Ratio), combination or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the Company Option shall be entitled or Parent to receive, take any action with respect to each share of Company Capital Stock or Parent Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretoStock, an amount in cash equal to the positive resultrespectively, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is prohibited or not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoexpressly permitted by the terms of this Agreement.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the -------------------- Merger and without any further action on the part of ParentFACO, Merger SubFACOSUB, the Company or any stockholder of the Companytheir respective shareholders:
(ia) any shares of Each Company Common Stock held by the CompanyShare then issued and outstanding, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury)other than Excepted Shares, Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive such fraction of a FACO Common Share equal to the quotient (rounded to the ten-thousandth place) resulting from the division of $6.25 by the average closing price per share of FACO Common Stock Per Share AmountShares as reported on the NYSE for the ten Trading Days ending on the third Trading Day prior to the Company Shareholders Meeting (such fraction, without interestthe "Exchange Ratio"); provided that for purposes of determining the Exchange -------------- Ratio, (i) if such average closing price is greater than $30 per share, such average closing price shall be deemed to be equal to $30 per share and (ii) if such average closing price is less than $22 per share, such average closing price shall be deemed to be equal to $22 per share. All such Company Common Shares, when so converted, shall no longer be outstanding and shall automatically be canceled and retired and each holder of a Company Common Certificate representing any such Company Common Shares shall cease to have any rights with respect thereto, other than its right to receive FACO Common Shares and cash in lieu of fractional FACO Common Shares;
(iiib) No fraction of a FACO Common Share will be issued, but in lieu thereof each holder of Company Common Shares who would otherwise be entitled to receive a fraction of a FACO Common Share shall receive from FACO an amount of cash (rounded to the nearest whole cent) equal to the product of (i) such fraction and (ii) the average closing price of a FACO Common Share, as reported on the NYSE, for the ten Trading Days ending on the Trading Day that is three Trading Days prior to the date of the Company Shareholders Meeting;
(c) Excepted Shares shall be canceled and retired without any conversion thereof and shall not receive any cash payment with respect to a fractional share;
(d) The Exchange Ratio shall be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend, reorganization, recapitalization or other like change with respect to FACO Common Shares or Company Common Shares occurring after the date hereof and prior to the Effective Time; and
(e) Each FACOSUB Common Share shall be converted into one share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the holder of any shares of the capital stock of the Company or any stockholder shares of the Companycapital stock of Merger Sub:
(ia) any shares Each share of Company Common Stock held owned by the Company or owned by Parent, Merger Sub or any subsidiary of any of the Company, any wholly-Parent or Merger Sub immediately prior to the Effective Time and each share of Company 7.5% Cumulative Convertible Preferred Stock, $5.76 par value per share (the "7.5% Cumulative Preferred") owned Subsidiary of the Company (by Parent or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, Sub immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled, and no payment or distribution shall be made with respect thereto;.
(iib) subject Each share of common stock of Merger Sub outstanding immediately prior to Sections 2.6(bthe Effective Time shall remain outstanding as a share of common stock of the Surviving Corporation and such shares shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
(i) Except as otherwise provided in Section 2.1(a), 2.8 and 2.9Section 2.2, or Section 2.7, each share Share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive consideration of $4.80, plus increments for each full calendar month (i.e. each monthly period ending on the same date within each month) that passes from the closing date under the Preferred Stock Purchase Agreement of even date herewith between the Company and the Parent to the Parent's Notice of Merger Election in amounts equal to (x) $0.045 for each of the first six (6) full months, (y) $0.05 for each of the next six (6) full calendar months, and (z) $0.075 for each full calendar month thereafter, provided however, that if, for any reason other than the Company's failure to timely comply with its obligations under Sections 2.4 and 6.19 hereof, the Effective Date is not within seventy-five (75) days of the date of the Parent's Notice of Merger Election, the Parent's Notice of Merger Election shall be deemed to have been given on the date determined by adding to the actual date of delivery the number of days in excess of seventy-five (75) that the Effective Date follows such actual delivery of the Parent's Notice of Merger Election, and minus any Unindemnified Common Stock Per Share AmountPurchase Agreement Loss, without interest;as defined below in this Section 2.1 ( the "Consideration for Company Common Stock"), payable, except as set forth below in Section 2.4, in immediately available funds or shares of Parent Common Stock, par value $.75 per share ("Parent Common Stock"), or a combination of both, as follows:
(iiiA) If the volume weighted average price of all Parent Common Stock traded, as reported on the NASDAQ National Market during the sixty (60) calendar days ending two (2) business days prior to the Parent's Notice of Merger Election (the "VWAP") is $8.00 or higher, the aggregate Consideration for Company Common Stock payable to all holders of shares of Company Common Stock shall include such number of shares of Parent Common Stock, issued in accordance with the Exchange Ratio described below, as is necessary in order that the aggregate number of shares of Company Common Stock exchanged through the Merger for shares of Parent Common Stock is at least 50% of the total number of shares of Company Common Stock outstanding immediately prior to the Effective Time (including shares owned by Parent, Merger Sub, or any subsidiary of Parent or Merger Sub), taking into account (as shares of Company Common Stock which are not acquired in exchange for shares of Parent Common Stock) Dissenting Shares (as defined in Section 2.2) and fractional shares for which payment is made pursuant to Section 2.7(e). The Parent may elect, in its sole discretion, to increase the percentage of the aggregate of such Consideration for Company Common Stock payable in Parent Common Stock to any amount in excess of the amount determined as described above, up to and including one-hundred percent (100%) (the percentage of Consideration for Company Common Stock chosen by Parent to be paid in Parent Common Stock is hereinafter referred to as the "Stock Percentage"). The Parent shall set forth the Stock Percentage it has chosen in the Parent's Notice of Merger Election. With respect to that portion of the Consideration for Company Common Stock to be paid in Parent Common Stock in accordance with the Stock Percentage, holders of shares of Company Common Stock shall be entitled to receive, for each such share of Company Common Stock, that fraction of a share of Parent Common Stock determined by multiplying a fraction (the "Exchange Ratio"), the numerator of which is the amount of the Consideration for Company Common Stock and the denominator of which is the VWAP, by the Stock Percentage, with the balance of such Consideration for Company Common Stock consisting of immediately available funds.
(B) If the VWAP is less than $8.00 per share, the amount of Consideration for Common Stock that shall consist of Parent Common Stock or immediately available funds, or both, and the Exchange Ratio shall be determined in the same manner as in A) above, except that as an alternative to the Stock Percentage determined as described above, the Parent may, at its option, elect a Stock Percentage of zero percent (0%), and thereby elect to pay the entire amount of the Consideration for Common Stock in immediately available funds.
(C) Notwithstanding the Stock Percentage chosen by the Parent in (A) or (B) above, any holder of Company Common Stock may elect, by giving notice of such election at the time such holder's shares of Company Common Stock are surrendered to the Exchange Agent pursuant to Section 2.7, to receive a percentage of the Consideration for Company Common Stock greater than the Stock Percentage chosen by the Parent, up to and including one-hundred percent (100%), provided however, if the VWAP is less than $8.00 per share, notwithstanding the provisions of (A) above, the Exchange Ratio for any shares of Parent Common Stock issued in excess of the Stock Percentage upon such an election by a holder of Company Common Stock shall be 0.6 share of Parent Common Stock for each share of Company Common Stock. If the common stockEffective Time occurs subsequent to any stock split, reverse stock split, share dividend, split-up, recapitalization or reorganization with respect to the Parent or the Parent Common Stock, as applicable, as a result of which shares of Parent Common Stock shall have been issued in respect of outstanding shares of Parent Common Stock or shares of Parent Common Stock shall be changed into the same or a different number of shares of Parent Common Stock or another class or classes of capital stock of the Parent, the VWAP and the Exchange Ratio shall be adjusted equitably to reflect such stock split, reverse stock split, share dividend, split-up, recapitalization or reorganization. Neither the Company or any shareholder thereof holding more than one percent (1%) of the outstanding Company Common Stock, at any time prior to the delivery to the Company of the Parent's Notice of Merger Election, shall purchase, sell or otherwise engage in any trading transactions (including without limiting the generality of the foregoing, short sales and trading in options or other derivatives) with respect to any shares of Parent Common Stock. None of the Parent, any subsidiary of the Parent, Xxxxxx X. Xxxxxxx, Xxxx Xxxxxxxxx or Xxxxxxx Xxxxx Mezzanine Capital Fund II Limited Partnership shall, at any time prior to the delivery to the Company of the Parent's Notice of Merger Election, purchase, sell or otherwise engage in any trading transactions (including without limiting the generality of the foregoing, short sales and trading in options or other derivatives) with respect to any shares of Parent Common Stock other than in private transactions, provided however, that, notwithstanding the above, Parent shall be permitted to purchase shares of Parent Common Stock (A) in accordance with its ongoing stock buy back program in amounts not greater than 6,000 shares per week, at a purchase price per share not to exceed $9.00, (B) in an amount required to satisfy its obligations under the CompuDyne Employee Stock Purchase Plan, and(C) from BI, Incorporated, or its nominee, provided, however, that any purchases of shares of Parent Common Stock permitted in (C) above shall be excluded from the calculation of the VWAP, and Xxxxxx X. Xxxxxxx shall be permitted to sell up to 100,000 shares of Parent Common Stock, provided however that nothing herein shall prohibit Parent from issuing shares of Parent Common Stock in an underwritten public offering at any time; and
(ii) At the Effective Time, each share of Company 6.0% Cumulative Convertible Preferred Stock, $0.01 100 par value per share(the "6.0% Cumulative Preferred"), and each share of Merger Sub Company 6.5% Cumulative Convertible Preferred Stock, $100 par value (the "6.5% Cumulative Preferred")(the 6.0% Cumulative Preferred and the 6.5% Cumulative Preferred hereinafter referred to collectively as the "Company Preferred Stock"), issued and outstanding immediately prior to the Effective Time shall be converted into one to a share of common such stock of the Surviving Corporation;
, in accordance with all of such share's current terms and conditions (iv) subject to Section 2.6(bthe "Surviving Corporation Preferred Stock"), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of except that rather than being convertible into Company Common Stock associated with such exercise shall automatically be cancelled andStock, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding , such shares of Surviving Corporation Preferred Stock shall be nonconvertible and unexercised for which an Option Consent is not obtained immediately prior Parent will issue to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelledholders of such Surviving Corporation Preferred Stock the option to receive, without any exercise thereof in exchange for the Surviving Corporation Preferred Stock, cash and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Parent Common Stock Per Share Amount as more fully described and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii2.6(b) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriatehereof.
Appears in 1 contract
Samples: Merger Agreement (Compudyne Corp)
Conversion of Shares. (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:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held Except as otherwise provided in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9this Section 2.02, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one the right to receive (i) 0.6534 (as may be adjusted pursuant to this Section 2.02(a), the “Exchange Ratio”) shares of Parent Stock (unless the Aggregate Shares Issued would exceed the Maximum Share Number, in which case the Exchange Ratio shall be reduced (the amount of such reduction, the “Exchange Ratio Reduction Number”) to the minimum extent necessary (as determined by Parent) such that the Aggregate Shares Issued equals the Maximum Share Number) (the “Per Share Stock Consideration”), and (ii) $16.00 in cash, without interest, plus, solely if the Exchange Ratio is adjusted pursuant to the preceding clause (i), the amount in cash equal to the Exchange Ratio Reduction Number multiplied by the Parent Stock Closing Price (the total cash per share of common stock Common Stock to be paid pursuant to this clause (ii), the “Per Share Cash Consideration”, and, together with the Per Share Stock Consideration, the “Merger Consideration”). As of the Surviving Corporation;Effective Time, all such shares of Company 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 and the right to receive any dividends or other distributions pursuant to Section 2.03(f), in each case to be issued or paid in accordance with Section 2.03, without interest.
(ivb) subject to Section 2.6(b), each Vested Each share of Company Option outstanding and unexercised for which an Option Consent is obtained Stock held by the Company as treasury stock (other than shares in a Company Employee Plan) or owned by Parent immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andcanceled, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(bc) Notwithstanding anything Each share of Company Stock held by any Subsidiary of either the Company or Parent immediately prior to the contrary including the definitions Effective Time shall be converted into such number of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights shares of stock of the Surviving Corporation such that each such Subsidiary owns the same percentage of Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time.
(d) 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 the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation.
Appears in 1 contract
Conversion of Shares. Upon and by reason of the Merger becoming effective, no cash shall be allocated to the shareholders of AFC and stock shall be issued and allocated as follows:
(a) At the Effective TimeDate, 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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9holders thereof, each share of Company common stock, par value $5.00 per share, of AFC ("AFC Common Stock Stock") issued and outstanding immediately prior to the Effective Time Date shall cease to be outstanding and not described in Section 2.6(a)(i) shall automatically be converted into and exchanged for 0.753 shares of common stock, par value $2.00 per share, of F&M ("F&M Common Stock") pursuant to the terms and conditions set forth in the Agreement and this Plan of Merger (the "Exchange Ratio").
(b) Each holder of a certificate representing shares of AFC Common Stock upon the surrender of his AFC stock certificates to the Exchange Agent (as defined in Section 2.2), duly endorsed for transfer in accordance with Section 2.2 below, will be entitled to receive in exchange therefor a certificate or certificates representing the number of whole shares of F&M Common Stock that his shares shall be converted into pursuant to the Exchange Ratio. Each such holder of AFC Common Stock shall have the right to receive the consideration described in this Section 2.1 and Section 2.3 upon the surrender of such certificate in accordance with Section 2.2.
(c) In the event F&M changes (or establishes a record date for changing) the number of shares of F&M Common Stock Per Share Amountissued and outstanding prior to the Effective Date as a result of a stock split, without interest;stock dividend, recapitalization or similar transaction with respect to the outstanding F&M Common Stock and the record date therefor shall be prior to the Effective Date, appropriate and proportional adjustments will be made to the Exchange Ratio.
(iiid) From and after the Effective Date, all employee stock options to purchase shares of AFC Common Stock (each, a "AFC Stock Option"), that are then outstanding and unexercised, shall be converted into and become options to purchase shares of F&M Common Stock, and F&M shall assume each such AFC Stock Option in accordance with the terms of the plan and agreement by which it is evidenced; provided, however, that from and after the Effective Date (i) each share such AFC Stock Option assumed by F&M may be exercised solely to purchase shares of F&M Common Stock, (ii) the common stock, $0.01 par value per share, number of Merger Sub outstanding shares of F&M Common Stock purchasable upon exercise of such AFC Stock Option shall be equal to the number of shares of AFC Common Stock that were purchasable under such AFC Stock Option immediately prior to the Effective Time Date multiplied by the Exchange Ratio and rounding down to the nearest whole share, and (iii) the per share exercise price under each such AFC Stock Option shall be converted into one adjusted by dividing the per share exercise price of common stock each such AFC Stock Option by the Exchange Ratio, and rounding up to the nearest cent. The terms of the Surviving Corporation;
(iv) each AFC Stock Option shall, in accordance with its terms, be subject to Section 2.6(b)further adjustment as appropriate to reflect any stock split, each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior stock dividend, recapitalization or other similar transaction with respect to F&M Common Stock on or subsequent to the Effective Time shall automatically be deemed exercised and Date. It is intended that the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option foregoing assumption shall be entitled to receive, effected in a manner that is consistent with respect to each share the requirements of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction Section 424 of the rights Internal Revenue Code of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt1986, as a result of amended (the foregoing, each Vested Company Option, and "Code") as to any deemed issuance of Company Common AFC Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
an "incentive stock option" (b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this as defined in Section 2.6 is $29,302,000. If (i) the number, type and rights 422 of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateCode).
Appears in 1 contract
Samples: Merger Agreement (F&m National Corp)
Conversion of Shares. (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 CompanyPerson:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, par value $0.01 par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into remain outstanding and shall represent one share of common stock stock, par value $0.01 per share, of the Surviving Corporation;, so that, as of and after the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation’s common stock.
(ivb) subject to Section 2.6(b), each Vested Company Option Each share of the Company’s Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time (other than Dissenting Shares and Excluded Shares) and all rights in respect thereof, shall by virtue of the Merger and without any action on the part of the holder thereof, be automatically be deemed exercised and converted into the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andright to receive the payment set forth in Section 2.10(c), in consideration for such deemed exercise and automatic cancellationcash, payable to the holder thereof without interest, upon the satisfaction of the conditions set forth in Section 2.10(d)(i), and such Vested Company shares shall otherwise cease to be outstanding, shall be canceled and retired and cease to exist. Notwithstanding anything to the contrary herein, (i) any amount to be paid in respect of any share of Common Stock, Option or Warrant in connection with the Closing shall be paid without interest and subject to applicable withholding Taxes, and (ii) no Adjustment Escrow Pro Rata Amount, Special Escrow Contribution Amount or Representative Holdback Contribution Amount, or any portion thereof, shall be paid to any Fully-Diluted Stockholder, and no such Fully-Diluted Stockholder shall be entitled to receiveany such amount, with respect until such time after the Closing Date and only to each the extent that any remaining amount in the Adjustment Escrow Account or the Special Escrow Account or the remaining amount of the Representative Holdback Amount, as applicable, is required to be released by the Escrow Agent or the Representative, as applicable, and paid to the Fully-Diluted Stockholders pursuant to this Agreement, the Adjustment Escrow Agreement and the Special Escrow Agreement, as applicable.
(c) Each share of Company Common Stock issuable upon held in the exercise of such Vested Company Option and in full satisfaction treasury of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi“Excluded Shares”) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, canceled and retired without any exercise thereof conversion thereof, and no payment or distribution shall be made with respect thereto.
(bd) Notwithstanding anything Each share of Series A Preferred Stock issued and outstanding immediately prior to the contrary including the definitions of Common Stock Per Share Amount Effective Time shall remain issued and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to outstanding until surrendered and redeemed as provided in this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateAgreement.
Appears in 1 contract
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger Mergers and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Companyparty:
(i) any shares Each share of Company Common Stock held by the Companycommon stock, any wholly-owned Subsidiary no par value, of the Company (or held in the Company’s treasury), Parent, Merger Sub, C&W Motors issued and any other wholly-owned Subsidiary outstanding as of Parent, immediately prior to the Effective Time shall be cancelled without any conversion (other than Dissenting Shares) and all rights in respect thereof shall, by virtue of Merger I, forthwith cease to exist and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into and represent the right to receive the Common Stock Closing Per Share AmountMerger Consideration, without interest;
(iii) each together with any amounts that may become payable as a result of the adjustments in Section 3.3 hereof or release of Escrow Shares, if any. Each share of the common stock, $0.01 par value $0.001 per share, of Merger Sub I (“Merger Sub I Common Stock”), issued and outstanding immediately prior to before the Effective Time Time, shall be converted into one newly issued, fully paid, and nonassessable share of common stock of C&W Motors (as the Surviving Corporation;). From and after the Effective Time, each certificate evidencing shares of Merger Sub I Common Stock shall evidence ownership of such shares of common stock of C&W Motors (as the Surviving Corporation).
(ivii) subject to Section 2.6(b)Each share of common stock, each Vested Company Option no par value, of Metro Motorcycle issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to as of the Effective Time shall automatically (other than Dissenting Shares) and all rights in respect thereof shall, by virtue of Merger II, forthwith cease to exist and be deemed exercised converted into and represent the deemed shares of Company Common Stock associated right to receive the Closing Per Share Merger Consideration, together with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, amounts that may become payable as a result of the foregoingadjustments in Section 3.3 hereof or, each Vested Company Optionwith respect to the Principal Owners, release of Escrow Shares, if any. Each share of common stock, par value $0.001 per share, of Merger Sub II (“Merger Sub II Common Stock”), issued and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at outstanding immediately before the Effective Time;, shall be converted into one newly issued, fully paid, and nonassessable share of common stock of Metro Motorcycle (as the Surviving Corporation). From and after the Effective Time, each certificate evidencing shares of Merger Sub II Common Stock shall evidence ownership of such shares of common stock of Metro Motorcycle (as the Surviving Corporation).
(iii) Each share of common stock, no par value, of Tucson Motorcycles issued and outstanding as of the Effective Time (other than Dissenting Shares) and all rights in respect thereof shall, by virtue of Merger III, forthwith cease to exist and be converted into and represent the right to receive the Closing Per Share Merger Consideration, together with any amounts that may become payable as a result of the adjustments in Section 3.3 hereof or release of Escrow Shares, if any. Each share of common stock, par value $0.001 per share, of Merger Sub III (“Merger Sub III Common Stock”), issued and outstanding immediately before the Effective Time, shall be converted into one newly issued, fully paid, and nonassessable share of common stock of Tucson Motorcycles (as the Surviving Corporation). From and after the Effective Time, each certificate evidencing shares of Merger Sub III Common Stock shall evidence ownership of such shares of common stock of Tucson Motorcycles (as the Surviving Corporation).
(iv) Each share of common stock, no par value, of Tucson Motorsports issued and outstanding as of the Effective Time (other than Dissenting Shares) and all rights in respect thereof shall, by virtue of Merger IV, forthwith cease to exist and be converted into and represent the right to receive the Closing Per Share Merger Consideration, together with any amounts that may become payable as a result of the adjustments in Section 3.3 hereof or, with respect to the Principal Owners, release of Escrow Shares, if any. Each share of common stock, par value $0.001 per share, of Merger Sub IV (“Merger Sub IV Common Stock”), issued and outstanding immediately before the Effective Time, shall be converted into one newly issued, fully paid, and nonassessable share of common stock of Tucson Motorsports (as the Surviving Corporation). From and after the Effective Time, each certificate evidencing shares of Merger Sub IV Common Stock shall evidence ownership of such shares of common stock of Tucson Motorsports (as the Surviving Corporation).
(v) each Vested Company Option Each share of common stock, no par value, of CMG Powersports issued and outstanding and unexercised for which an Option Consent is not obtained immediately prior to as of the Effective Time shall automatically (other than Dissenting Shares) and all rights in respect thereof shall, by virtue of Merger V, forthwith cease to exist and be terminated; and
converted into and represent the right to receive the Closing Per Share Merger Consideration, together with any amounts that may become payable as a result of the adjustments in Section 3.3 hereof or, with respect to the Principal Owners, release of Escrow Shares, if any. Each share of common stock, par value $0.001 per share, of Merger Sub V (vi) each “Merger Sub V Common Stock”), issued and outstanding Company Option that is not a Vested Company Option immediately before the Effective Time, shall be automatically cancelledconverted into one newly issued, without any exercise thereof fully paid, and no payment or distribution shall be made with respect thereto.
nonassessable share of common stock of CMG Powersports (b) Notwithstanding anything to as the contrary including Surviving Corporation). From and after the definitions Effective Time, each certificate evidencing shares of Merger Sub V Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights shall evidence ownership of the such shares of capital common stock of CMG Powersports (as the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateSurviving Corporation).
Appears in 1 contract
Samples: Plan of Merger and Equity Purchase Agreement (RumbleON, Inc.)
Conversion of Shares. Section 3.1 Conversion of Company Shares in the Merger.
(a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parentany holder of any capital stock of the Company except as set forth in this Section 3.1, Merger Subsubject to the other provisions of this Section 3.1, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Companycommon stock, any wholly-owned Subsidiary without par value, of the Company (or held in the Company’s treasury), Parent, Merger Sub, "Company Common Stock") issued and any other wholly-owned Subsidiary of Parent, outstanding immediately prior to the Effective Time (excluding any treasury shares) owned by the stockholders of the Company shall be cancelled without any conversion thereof converted in the aggregate into the right to receive an aggregate of 84,915,000 validly issued, fully paid and no payment or distribution shall be made with respect thereto;
nonassessable shares of common stock, par value $0.00133 per share (ii) the "Merger Consideration"), of Parent ("Parent Common Stock"), subject to Sections 2.6(b)adjustment. Each holder of Company Common Stock shall receive its pro rata share of the Merger Consideration. At the Effective Time, 2.8 all shares of Company Common Stock shall no longer be outstanding and 2.9shall automatically be canceled and retired and shall cease to exist, and each share certificate previously evidencing any such shares shall thereafter represent the right to receive the Merger Consideration. The holders of certificates previously evidencing shares of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(the "Certificates") shall automatically be converted into the right cease to receive the have any rights with respect to shares of Company Common Stock Per Share Amountexcept as otherwise provided herein or by law. The Certificates shall be exchanged for certificates evidencing whole shares of Parent Common Stock issued in consideration therefor in accordance with the allocation procedures of this Section 3.1 and upon the surrender of such Certificates in accordance with the provisions of Section 3.2. No fractional shares of Parent Common Stock shall be issued, without interest;and, in lieu thereof, a cash payment shall be made pursuant to Section 3.2(c).
(iiib) Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time the outstanding shares of Parent Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Merger Consideration shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.
(c) The Merger Consideration to be received by the stockholders of the Company assumes that prior to the Merger the Company shall have acquired, in exchange for equity securities, Nationwide Warehouse & Storage, Inc. of Georgia and affiliated entities ("Nationwide South"). If Nationwide South shall not have been acquired, then the Merger Consideration shall be reduced to an aggregate of 61,965,000 shares of Parent Common Stock.
(d) Each share of Company Common Stock held in the treasury of the Company and each share of Company Common Stock owned by Parent or any direct or indirect wholly owned subsidiary of Parent or of Company immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto.
(e) In the Reverse Merger, each share of common stock, $0.01 par value per share, stock of Merger Acquisition Sub 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 of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Room Plus Inc)
Conversion of Shares. (a) At the Effective Time, by virtue as a result of the Merger and without any further action on the part of Parent, Merger Sub, the Company or the holders of any stockholder capital stock of Parent, Merger Sub or the Company:
(ia) except as otherwise provided in Section 2.03(b), Section 2.03(c) or Section 2.05 and except for any shares of Company Common Stock held contributed to Holdings by the CompanyRollover Investors (if any) (collectively, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, “Rollover Shares”) immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9Time, each share of Company Common Stock outstanding immediately prior to the Effective Time issued and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be automatically canceled and converted into the right to receive one dollar and twenty-seven cents ($1.27) in cash without interest (the “Merger Consideration”). As of the Effective Time, all such shares of Company Common Stock shall no longer be issued and outstanding and shall automatically be canceled and shall cease to exist, and each holder of a Certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration upon surrender of such certificate in accordance with Section 2.04, without interest. For the avoidance of doubt, no Rollover Shares shall be converted into the right to receive the Merger Consideration;
(b) each share of Company Common Stock owned by the Company and any shares of Company Common Stock owned by Parent or Merger Sub (or any of their respective Affiliates) immediately prior to the Effective Time, shall automatically be canceled and shall cease to exist and no consideration shall be delivered in exchange therefor; and
(c) each share of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option Merger Sub issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised converted into and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled andbecome one fully paid, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each nonassessable share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect theretocommon stock, an amount in cash equal to the positive result, if anypar value $0.01 per share, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated Surviving Corporation with the deemed exercisesame rights, which powers and privileges as the shares so converted and shall not be issued, shall both be cancelled at constitute the Effective Time;
(v) each Vested Company Option only outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6Surviving Corporation.
(d) from the date of this Agreement until the date that is two (2) Business Days prior to the date of the Stockholder Meeting, and/or Holdings may from time to time enter into one or more rollover agreements, (iithe “Rollover Agreement(s)”), pursuant to which no more than fifty (50) the rights (whether options, warrants or any other rights) to acquire capital stock stockholders of the Company are not as set forth determined by Parent in Section 3.6its discretion (any such stockholders, the consideration “Rollover Investors”) agree to be delivered in respect contribute to Holdings, subject to the terms and conditions therein, the number of a share shares of Company Common Stock and a Vested set forth in such agreements. Immediately prior to the Effective Time, the Rollover Investors, if any, shall contribute the shares of Company Option for which an Option Consent has been obtained (and accordingly, Common Stock owned by them to Holdings pursuant to Section 2.6) the Rollover Agreement(s). Subsequent to the receipt by Holdings of the shares of Company Common Stock from the Rollover Investors (if any), such shares of Company Common Stock shall be adjusted downward as appropriateautomatically cancelled, by virtue of the Merger, in accordance with Section 2.03(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (RMG Networks Holding Corp)
Conversion of Shares. (a) At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company, the holders of any share of capital stock or other equity securities of the Company or the Merger Sub, or any stockholder of the Companyother Person:
(a) All shares of Company Common Stock that are owned by Parent, the Company (including shares held as treasury stock or otherwise) or Merger Sub immediately prior to the Effective Time shall be automatically cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor. All shares of Company Common Stock that are owned by any Subsidiary of the Company immediately prior to the Effective Time shall remain unchanged at and after the Effective Time.
(b) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (each, a “Share”) (other than (i) shares of Company Common Stock to be cancelled in accordance with Section 2.3(a) and (ii) any Common Appraisal Shares as expressly set forth in Section 2.8) shall, at the Effective Time, be converted into the right to receive $10.05 in cash, without interest (the “Per Share Merger Consideration”), payable to the holder thereof in accordance with this Article II, less any withholding in accordance with Section 2.4(h) and subject to the provisions of Section 2.7. From and after the Effective Time, all Shares converted into the right to receive the Per Share Merger Consideration pursuant to this Section 2.3(b) shall cease to be outstanding and shall automatically be cancelled and retired, and each holder of (i) a certificate that immediately prior to the Effective Time represented any such Share (a “Certificate”) or (ii) any Share that is uncertificated, whether held in book-entry form or otherwise (“Uncertificated Shares”), shall thereafter cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration in consideration for such Share in accordance with this Article II upon compliance with the applicable procedures set forth in this Article II. For the avoidance of doubt, shares of Company Common Stock held by the Company, any wholly-owned Subsidiary Company as treasury stock will not be considered to be “issued and outstanding” for purposes of this Section 2.3(b).
(c) All of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary shares of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock stock, par value $0.0001 per share, of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
Conversion of Shares. (a) At the Effective Time, each share of common stock, par value $0.001 per share, of LRMT (individually a "LRMT Share" and collectively, the "LRMT Shares") issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any further action on the part of ParentLRMT, Merger SubGLOBAL, MERGER SUB or the holder thereof, be canceled and converted into the right to receive, upon the surrender of the certificate formerly representing such share, one share of GLOBAL's Common Stock, par value $0.001 per share. In the event that, subsequent to the date of this Agreement but prior to the Effective Time, the Company outstanding shares of GLOBAL Common Stock or any stockholder LRMT Common Stock are changed into a different number of shares or a different class as a result of a stock split, reverse stock split, stock dividend, subdivision, reclassification, combination, exchange, recapitalization or similar transaction, the number of shares of GLOBAL Common Stock into which each share of LRMT Common Stock will be converted as a result of the CompanyMerger will be adjusted appropriately.
(b) LRMT hereby acknowledges that (i) the GLOBAL Shares have not been and will not be registered under the Securities Act of 1933 ("1933 Act") or under the securities laws of any state and, therefore, the GLOBAL Shares cannot be resold unless they are subsequently registered under said laws or exemptions from such registrations are available; and (ii) the transferability of the Shares is restricted and that a legend shall be placed on the certificates representing the securities substantially to the following effect:
(ic) any shares of Company Common Stock held by At the CompanyEffective Time, any wholly-owned Subsidiary of the Company (or each LRMT Share held in the Company’s treasury)treasury of LRMT, Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, by LRMT immediately prior to the Effective Time shall be cancelled shall, by virtue of the Merger and without any conversion thereof action on the part of LRMT, MERGER SUB or GLOBAL be canceled, retired and cease to exist and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the 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;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(bd) Notwithstanding anything Prior to the contrary including date of this Agreement, GLOBAL has amended its Certificate of Incorporation to increase its authorized common stock from 27,000,000 shares to 100,000,000 shares, par value $0.001 and authorize 20,000,000 shares, par value $0.001, of preferred stock.
(e) Prior to the definitions date of Common Stock Per Share Amount and Merger Option Considerationthis Agreement, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the GLOBAL has reverse split its outstanding shares of capital common stock of the Company are not as set forth in Section 3.6, and/or on a 1 for 5 basis (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a each GLOBAL shareholder received one share of Company Common Stock and common stock for every five (5) shares currently owned; however, in no event was a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateshareholder reversed below one whole share).
Appears in 1 contract
Samples: Acquisition Agreement (Left Right Maketing Technology Inc)
Conversion of Shares. (a) At Subject to the terms and conditions of this Agreement, 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 by the Company, Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Effective Time (or held in the Company’s treasury)) shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock held by Parent, Merger Sub, and Sub or any other wholly-owned Subsidiary of Parent, Parent as of immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii) )” above and subject to Sections 2.6(bSection 1.5(c), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i(other than any Dissenting Company Shares) shall automatically be converted into the right to receive the (A) a number of shares of Parent Common Stock Per Share Amountequal to the Exchange Ratio and (B) one contingent value right per share (a “CVR”) representing the right to receive the consideration set forth in the CVR Agreement (together with the Exchange Ratio, without interest;the “Merger Consideration”); and
(iiiiv) each share of the common stockCommon 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;.
(ivb) subject If, during the period from the date of this Agreement through the Effective Time, the outstanding shares of Company Common Stock or 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 the Company or Parent and a record date with respect to any such event shall occur during such period, then the Exchange Ratio shall be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.6(b1.5(b) shall be deemed to permit or authorize any party hereto to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(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 Common Stock (other than any Dissenting Company Shares) 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 of such holder’s Company Stock Certificate(s), each Vested or non-certificated shares of Company Option Common Stock represented by book entry (“Book Entry Shares”), be paid in cash the dollar amount (rounded to the nearest whole cent, with numbers ending with ..5 or more being rounded up to the nearest whole cent), without interest, determined by multiplying such fraction by the average closing price of a share of Parent Common Stock on the Nasdaq Global Select Market for the 10 most recent trading days that Parent Common Stock has traded ending on the trading day one day prior to the date on which the Merger becomes effective.
(d) Notwithstanding anything to the contrary set forth in this Agreement, all shares of Company Common Stock issued and outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time and held by a stockholder of the Company who (A) has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such shares in accordance with Section 262 of the DGCL, (B) has properly complied with Section 262 of the DGCL, and (C) has not effectively withdrawn or lost its rights to appraisal (“Dissenting Company Shares”) shall automatically not be converted into, or represent the right to receive, the Merger Consideration pursuant to this Section 1.5. By virtue of the Merger, all Dissenting Company Shares shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under Section 262 of the DGCL; provided, however, that notwithstanding the foregoing, all Dissenting Company Shares held by a stockholder of the Company who shall have failed to perfect or who shall have effectively withdrawn or lost such stockholder’s right to appraisal under such Section 262 of the DGCL shall thereupon be deemed exercised to have been converted into, and to have become exchangeable for, the deemed right to receive the Merger Consideration pursuant to Section 1.5(a), without any interest thereon, upon surrender of the Company Stock Certificate(s) or Book Entry Shares that formerly evidenced such shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as manner set forth in Section 3.61.7. The Company shall give Parent (i) prompt notice of, and/or together with copies of, any demand received by the Company for payment of the fair value of any Company Common Stock, withdrawals of such demands, and any other instruments received by the Company as part of any such demand for dissenter’s rights and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for dissenter’s rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered under Delaware law in respect of a share Dissenting Company Shares. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal rights or settle or offer to settle or compromise any such demands for payment in respect of Dissenting Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateShares.
Appears in 1 contract
Conversion of Shares. (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 held, directly or indirectly, by the Company, any wholly-wholly owned Subsidiary of the Company immediately prior to the 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, and Sub or any other wholly-wholly owned Subsidiary of Parent, Parent immediately prior to the Effective Time shall be cancelled without any conversion thereof canceled and retired and shall cease to exist, and no payment or distribution consideration shall be made with respect theretodelivered in exchange therefor;
(iii) except as provided in clauses “(i)” and “(ii)” of this Section 1.5(a) and subject to Sections 2.6(b1.5(b), 2.8 1.7 and 2.91.8, each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive $13.25 in cash (such cash amount, as it may be adjusted pursuant to Section 1.5(c), the Common Stock “Price Per Share AmountShare”), without interest;; and
(iiiiv) each share of the common stock, $0.01 0.0001 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;.
(ivb) subject to Section 2.6(b), each Vested If any shares of Company Option Common Stock outstanding and unexercised for which an Option Consent is obtained immediately prior to the Effective Time constitute Company Restricted Stock, then: (i) the Price Per Share payable in exchange for each such share of Company Restricted Stock will be unvested and subject to the same repurchase option, risk of forfeiture or other conditions applicable to such Company Restricted Stock; and (ii) such consideration need not be paid until such time as such repurchase option, risk of forfeiture or other condition lapses or otherwise terminates. Prior to the Closing, the Acquired Companies shall automatically use commercially reasonable efforts to take all action that may be deemed exercised reasonably necessary, including obtaining all reasonably necessary Consents, to ensure that, from and after the deemed Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such Company Restricted Stock purchase agreement or other Contract with respect to such unvested consideration.
(c) If, during the period commencing on the date of this Agreement and ending at the Effective Time, the outstanding shares of Company Common Stock associated with 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 exercise shall automatically be cancelled andperiod, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, or a record date with respect to each share any such event shall occur during such period, then the consideration to be paid in respect of shares of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.61.5(a)(iii) shall be adjusted downward as to the extent appropriate.
Appears in 1 contract
Conversion of Shares. (a) At Upon the terms and subject to the conditions set forth herein, 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 CompanyParty:
(ia) any shares of Company Common Stock held by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each Each share of Company Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, par value $0.01 par value per share, of the Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one newly issued, fully paid, and non-assessable share of common stock, par value one cent ($0.01) per share, of the Surviving Entity with the same rights, powers, and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Entity. From and after the Effective Time, all certificates representing shares of the Merger Sub common stock shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Entity into which they were converted in accordance with the immediately preceding sentence.
(b) Each share of common stock of the Surviving Corporation;Company, par value one cent ($0.01) per share (the “Company Common Stock”) outstanding immediately prior to the Effective Time (other than such shares of Company Common Stock constituting Dissenting Shares, which shall be treated as set forth in Section 2.8) shall convert into the right to receive (without interest) the Per Share Merger Consideration. All such shares of Company Common Stock shall thereafter cease to be outstanding, shall automatically be canceled, extinguished and retired and shall cease to exist, and the holders of the shares of Company Common Stock immediately prior to the Effective Time shall cease to have any rights with respect to the shares of Company Common Stock, except for the right to receive (without interest) the Per Share Merger Consideration.
(ivc) subject to Section 2.6(b), each Vested Each share of Company Option outstanding and unexercised for which an Option Consent is obtained Common Stock held in the treasury of the Company or held by the Parent or the Merger Sub immediately prior to the Effective Time shall automatically be deemed exercised canceled and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, retired without any exercise thereof conversion thereof, and no payment or distribution shall be made with respect thereto.
(bd) Notwithstanding anything In the event of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to the contrary including the definitions of Parent Common Stock Per Share Amount occurring after the Execution Date and Merger Option Considerationprior to the Effective Time, the maximum aggregate consideration all references herein to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights specified numbers of the shares of capital stock any class or series affected thereby, and all calculations provided for that are based upon numbers of the Company are not as set forth in Section 3.6shares of any class or series (or trading prices therefor) affected thereby, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be equitably adjusted downward to the extent necessary to provide the Parties the same economic effect as appropriatecontemplated by this Agreement prior to such stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change.
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Conversion of Shares. (a) At the Effective Time, by By virtue of the Merger Merger, automatically and without any further action on the part of Parentthe holder thereof, Merger Sub, at the Company or any stockholder of the CompanyEffective Time:
(i) any Each issued and outstanding share of NRC Common Stock shall cease to exist and shall be converted into and represent the right to receive 0.405 shares of Company Candie's Common Stock held by (the Company, any wholly-owned Subsidiary "Exchange Ratio");
(ii) Any shares of the Company (or NRC Common stock issued and held in the Company’s treasury), Parent, Merger Sub, treasury of NRC shall be cancelled;
(iii) Any shares of NRC Common Stock issued and any other wholly-owned Subsidiary of Parent, by Candie's immediately prior to preceding the Effective Time shall be cancelled without any conversion thereof and retired and no payment or distribution shall be made with respect thereto;
(iiiv) subject Any shares of Candie's Common Stock issued and owned by NRC immediately preceding the Effective Time shall be returned to Sections 2.6(b)the status of authorized but unissued shares of Candie's Common Stock, 2.8 and 2.9no payment made with respect thereto;
(v) Any warrants or options to the purchase shares of Candie's Common Stock issued and owned by NRC immediately preceeding the Effective Time shall be cancelled, each and no payment made with respect thereto; and
(vi) Each issued and outstanding option to acquire one (1) share of Company NRC Common Stock outstanding immediately prior to the Effective Time and not described in Section 2.6(a)(i) shall automatically be converted into the right to receive the Common Stock Per Share Amount, without interest;
(iii) each share of the common stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to at the Effective Time shall be converted into an option to acquire 0.405 shares of Candie's Common Stock, which option shall be on substantially the same terms and conditions as the option being converted, and shall be exercisable at an exercise price equal to the quotient of (a) the exercise price of the option being converted divided by (b) the Exchange Ratio, which quotient shall then be rounded down to the nearest cent. Between the date hereof and the Effective Date if necessary, Candie's shall amend its stock option plan and reserve sufficient shares so as to permit the issuance of the options to acquire shares of Candie's Common Stock described in this Section 1.9(a)(vi).
(b) No rights to receive fractional shares of Candie's Common Stock shall arise under this Agreement.
(c) No fractional shares of Candie's Common stock shall be issued, but in lieu thereof, each holder of Candie's Common Stock who would otherwise be entitled to receive a fraction of a share of Candie's Common Stock shall receive from Candie's an amount of cash equal to the price of one share of common stock Candie's Common Stock as of the Surviving Corporation;
date of the Merger (ivwhich price shall be calculated as the average of the last sales price for Candie's Common Stock during the twenty (20) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained day period immediately prior to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as Date) multiplied by a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect thereto.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect fraction of a share of Company Candie's Common Stock and a Vested Company Option for which such holder would be entitled. No shareholder of NRC shall receive cash from Candie's in lieu of fractional shares in an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriateamount greater than the value of one paid share of Candie's Common Stock.
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Samples: Merger Agreement (Candies Inc)
Conversion of Shares. As of the Effective Time:
(a) At the Effective Time, by virtue Each share of capital stock of the Merger Bank which is issued 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 by the Company, any wholly-owned Subsidiary of the Company (or held in the Company’s treasury), Parent, Merger Sub, and any other wholly-owned Subsidiary of Parent, immediately prior to the Effective Time shall be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto;
(ii) subject to Sections 2.6(b), 2.8 and 2.9, each share of Company Common Stock outstanding immediately prior to the Effective Time Time, shall ipso facto and not described in Section 2.6(a)(i) shall automatically without any action on the part of the holder thereof, become and be converted into three (3) shares of common stock of the right Corporation, and outstanding certificate(s) (hereinafter called the "Old Certificate(s)") representing shares of capital stock of the Bank shall thereafter represent shares of common stock of the Corporation. All shares of common stock of the Corporation into which capital stock of the Bank is converted, as above provided, when issued shall be fully paid and nonassessable. Shares of the Corporation, if any, that would have been issued to a shareholder had the shareholder not dissented from the consolidation shall be held by the Corporation as treasury shares.
(b) Each holder of shares of capital stock of the Bank which shall have been so converted into common stock of the Corporation, upon surrender of such Old Certificate(s) in proper form to the Resulting Bank for cancellation, shall be entitled to receive, as evidence of the shares of capital stock so converted, stock certificate(s) (hereinafter called "New Certificate(s)") bearing the name of the Corporation as issuer, for the number of shares of the Corporation represented by such Old Certificate(s) when surrendered. Until so surrendered, each Old Certificate shall be deemed, for all corporate purposes, to evidence the ownership of the number of shares of common stock of the Corporation which the holder thereof would be entitled to receive upon its surrender, except that the Common Stock Per Share AmountCorporation may withhold, from the holder of shares represented by such Old Certificate(s), distribution of any or all dividends declared by the Corporation on such shares until such time as such Old Certificate(s) shall be surrendered in exchange for New Certificate(s), at which time dividends so withheld by the Corporation with respect to such shares shall be delivered, without interest;interest thereon, to the shareholder to whom such New Certificate(s) are issued.
(iiic) each The one (1) share of common stock of the common stock, $0.01 par value per share, of Merger Sub New Bank which is issued and outstanding immediately prior to the Effective Time Time, shall be converted into one share redeemed.
(d) All of the shares of common stock of the Surviving Corporation;
(iv) subject to Section 2.6(b), each Vested Company Option outstanding and unexercised for which an Option Consent is obtained immediately prior Resulting Bank will be issued to the Effective Time shall automatically be deemed exercised and the deemed shares of Company Common Stock associated with such exercise shall automatically be cancelled and, in consideration for such deemed exercise and automatic cancellation, the holder of such Vested Company Option shall be entitled to receive, with respect to each share of Company Common Stock issuable upon the exercise of such Vested Company Option and in full satisfaction of the rights of the holder with respect thereto, an amount in cash equal to the positive result, if any, of the Merger Option Consideration less any required withholding of Taxes; for avoidance of doubt, as a result of the foregoing, each Vested Company Option, and any deemed issuance of Company Common Stock associated with the deemed exercise, which shall not be issued, shall both be cancelled at the Effective Time;
(v) each Vested Company Option outstanding and unexercised for which an Option Consent is not obtained immediately prior to the Effective Time shall automatically be terminated; and
(vi) each outstanding Company Option that is not a Vested Company Option shall be automatically cancelled, without any exercise thereof and no payment or distribution shall be made with respect theretoCorporation.
(b) Notwithstanding anything to the contrary including the definitions of Common Stock Per Share Amount and Merger Option Consideration, the maximum aggregate consideration to be paid pursuant to this Section 2.6 is $29,302,000. If (i) the number, type and rights of the shares of capital stock of the Company are not as set forth in Section 3.6, and/or (ii) the rights (whether options, warrants or any other rights) to acquire capital stock of the Company are not as set forth in Section 3.6, the consideration to be delivered in respect of a share of Company Common Stock and a Vested Company Option for which an Option Consent has been obtained (and accordingly, pursuant to Section 2.6) shall be adjusted downward as appropriate.
Appears in 1 contract
