Delivery of Consideration (a) Promptly after the Exchange Effective Time, the Exchange Agent shall mail to each holder of record of Company Virginia Sub Certificate(s) which immediately prior to the Exchange Effective Time represented outstanding shares of Company Virginia Sub Common Stock whose shares were exchanged for the right to receive the Consideration pursuant to Section 2.4 and any cash in lieu of fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs to be issued or paid in consideration therefor who did not properly complete and submit an Election Form, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to Certificate(s) shall pass, only upon delivery of Company Virginia Sub Certificate(s) (or affidavits of loss in lieu of such Certificate(s))) (the “Letter of Transmittal”) to the Exchange Agent and shall be substantially in such form and have such other provisions as shall be prescribed by the Exchange Agent Agreement and (ii) instructions for use in surrendering Certificate(s) in exchange for the Consideration and any cash in lieu of fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs to be issued or paid in consideration therefor in accordance with Section 2.3(f) upon surrender of such Company Virginia Sub Certificate. Subject to the proviso to the last sentence of Section 2.4(a)(iv), the Letter of Transmittal shall also contain instructions for electing to effect the surrender of Company Virginia Sub Certificates in exchange for or Parent Ordinary Shares in account entry form in lieu of ADSs.
(b) Upon surrender to the Exchange Agent of its Company Virginia Sub Certificate(s), accompanied by a properly completed Form of Election or a properly completed Letter of Transmittal, a holder of Company Virginia Sub Common Stock will be entitled to receive, promptly after the Exchange Effective Time, the Consideration (elected or deemed elected by it, subject to, and in accordance with Sections 2.4 and 2.5) and any cash in lieu of fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs to be issued or paid in consideration therefor in respect of the shares of Company Virginia Sub Common Stock represented by Company Virginia Sub Certificate(s). Until so surrendered, each such Company Virginia Sub Certificate shall represent after the Exchange Effective Time, for all purposes, only the right to receive, without interest, the Consideration and any cash in lieu of fractional Parent Ordinary Shares in account entry form and receipts representing Parent ADSs to be issued or paid in consideration therefor upon surrender of such Company Virginia Sub Certificate in accordance with, and any dividends or distributions to which such holder is entitled pursuant to, this Article III.
(c) No dividends or other distributions with respect to Parent Ordinary Shares in account entry form or receipts representing Parent ADSs shall be paid to the holder of any unsurrendered Company Virginia Sub Certificate with respect to the Parent Ordinary Shares in account entry form or receipts representing Parent ADSs represented thereby, in each case unless and until the surrender of such Company Virginia Sub Certificate in accordance with this Article III. Subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any such Company Virginia Sub Certificate in accordance with this Article III, the record holder thereof shall be entitled to receive, without interest, (i) the amount of dividends or other distributions with a record date after the Exchange Effective Time theretofore payable with respect to the whole Parent Ordinary Shares in account entry form or receipts representing Parent ADSs represented by such Company Virginia Sub Certificate and not paid and/or (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to Parent Ordinary Shares in account entry form or receipts representing Parent ADSs represented by such Company Virginia Sub Certificate with a record date after the Exchange Effective Time (but before such surrender date) and with a payment date subsequent to the issuance of the Parent Ordinary Shares in account entry form or receipts representing Parent ADSs issuable with respect to such Company Virginia Sub Certificate.
(d) In the event of a transfer of ownership of a Company Virginia Sub Certificate representing Company Virginia Sub Common Stock that is not registered in the stock transfer records of Company Virginia Sub, the proper amount of cash and/or Parent Ordinary Shares in account entry form or receipts representing Parent ADSs shall be paid or issued in exchange therefor to a person other than the person in whose name the Company Virginia Sub Certificate so surrendered is registered if the Company Virginia Sub Certificate formerly representing such Company Virginia Sub Common Stock shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment or issuance shall pay any transfer or other similar Taxes required by reason of the payment or issuance to a person other than the registered holder of the Company Virginia Sub Certificate or establish to the satisfaction of Parent that the Tax has been paid or is not applicable. The Exchange Agent (or, subsequent to the earlier of (x) the one-year anniversary of the Exchange Effective Time and (y) the expiration or termination of the Exchange Agent Agreement, Parent) shall be entitled to deduct and withhold from any cash portion of the Consideration, any cash in lieu of fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs, cash dividends or distributions payable pursuant to Section 2.3(c) hereof and any other cash amounts otherwise payable pursuant to this Agreement to any holder of Company Virginia Sub Common Stock such amounts as the Exchange Agent or Parent, as the case may be, is required to deduct and withhold under the Code, or any provision of state, local or foreign Tax law, with respect to the making of such payment. To the extent the amounts are so withheld by the Exchange Agent or Parent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Virginia Sub Common Stock in respect of whom such deduction and withholding was made by the Exchange Agent or Parent, as the case may be.
(e) After the Exchange Effective Time, there shall be no transfers on the stock transfer books of Company Virginia Sub of any shares of Company Virginia Sub Common Stock that were issued and outstanding immediately prior to the Exchange Effective Time other than to settle transfers of Company Virginia Sub Common Stock that occurred prior to the Exchange Effective Time. If, after the Exchange Effective Time, Company Virginia Sub Certificates representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for the Consideration and any cash in lieu of fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs to be issued or paid in consideration therefor in accordance with Section 2.5 and the procedures set forth in this Article III.
(f) Notwithstanding anything to the contrary contained in this Agreement, no certificates or scrip representing fractional Parent Ordinary Shares in account entry form or receipts representing Parent ADSs shall be issued upon the surrender of Company Virginia Sub Certificates for exchange, no dividend or distribution with respect to Parent Ordinary Shares in account entry form or receipts representing Parent ADSs shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Parent Ordinary Shares in account entry form or receipts representing Parent ADSs. In lieu of the issuance of any such fractional share, Parent shall pay to each former stockholder of Company Virginia Sub who otherwise would be entitled to receive such fractional share, an amount in cash (rounded to the nearest whole cent) determined by multiplying (i) the Parent Closing Price by (ii) the fraction of a share (after taking into account all shares of Company Virginia Sub Common Stock held by such holder at the Exchange Effective Time and rounded to the nearest one thousandth when expressed in decimal form) of Parent Ordinary Shares to which such holder would otherwise be entitled to receive pursuant to Section 2.4.
(g) Any portion of the Exchange Fund that remains unclaimed by the stockholders of Company Virginia Sub as of the one-year anniversary of the Exchange Effective Time shall be paid to Parent. Any former stockholders of Company Virginia Sub who have not theretofore complied with this Article III shall thereafter look only to Parent with respect to the Consideration, any cash in lieu of any fractional shares and any unpaid dividends and distributions on the Parent Ordinary Shares in account entry form or receipts representing Parent ADSs deliverable in respect of each share of Company Virginia Sub Common Stock such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of Parent, Company Virginia Sub, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Virginia Sub Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(h) In the event any Company Virginia Sub Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Virginia Sub Certificate to be lost, stolen or destroyed and, if reasonably required by Parent or the Exchange Agent, the posting by such person of a bond in such amount as Parent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Company Virginia Sub Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Virginia Sub Certificate the Consideration deliverable in respect thereof pursuant to this Agreement.
(i) Notwithstanding anything in this Agreement to the contrary, if Parent so elects prior to the Exchange Effective Time, the Exchange Agent shall aggregate all fractional interests in Parent Ordinary Shares and sell all such shares, in one or more transactions executed on the NYSE through one or more brokers nominated by Parent with the proceeds of such sale being remitted to the Exchange Agent as soon as practicable thereafter. The Exchange Agent shall deliver the cash proceeds of any such sales to former holders of shares of Company Virginia Sub Common Stock in lieu of their fractional interest in Parent Ordinary Shares or Parent ADSs. The proceeds to any holder of shares of Company Virginia Common Stock sold by the Exchange Agent pursuant to this Section 3.3(i) shall be the proceeds before any costs associated with any such sale, and any costs incurred in connection with any such sale (including any commissions, transfer taxes and other transaction costs) shall be borne by Parent.
Deliveries at the Closing At the Closing: -------------------------
(a) Seller and/or Parent shall deliver or cause to be delivered to Buyer the following:
(i) a good and sufficient xxxx of sale for the Assets, selling, delivering, transferring and assigning to Buyer all of Seller's and Affiliate's right, title and interest in and to the Assets, free and clear of any and all Liens other than Permitted Liens, in substantially the form attached hereto as Exhibit A (the "Xxxx of Sale"), together with such assignments and --------- ------------ other documentation reasonably requested by, and in form and substance reasonably satisfactory to, Buyer to validly vest Buyer with all of Seller's and Affiliate's right, title and interest in or to the Assets, free and clear of all Liens other than Permitted Liens;
(ii) consents, in substantially the form attached hereto as Exhibit B-1, to the assignment of the contracts listed on Schedules 2.30 and ----------- -------------- 2.31 of the Seller Disclosure Schedule; ----
(iii) copies, certified by an authorized officer of Seller, of minutes or resolutions of the board of directors and Parent, as sole stockholder, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(iv) copies, certified by an authorized officer of Parent, of minutes or resolutions of the board of directors, which shall not have been rescinded or modified, unconditionally authorizing the execution of this Agreement and the performance of the transactions contemplated hereby;
(v) the Escrow Agreement, in substantially the form attached hereto as Exhibit D (the "Escrow Agreement"), executed by each of --------- ---------------- Seller and Parent;
(vi) documents in form and substance reasonably satisfactory to Buyer and its counsel evidencing that the approvals and consents specified in Sections 6.1(c) and 6.3(c) hereof have been obtained and are in full force and effect; and
(vii) all other documents and instruments required hereunder to be delivered by Seller to Buyer at the Closing;
(b) Buyer shall deliver or cause to be delivered to Seller the following:
(i) an instrument of assumption of liabilities, in substantially the form attached hereto as Exhibit C, by which Buyer shall assume --------- the Assumed Liabilities as of the Closing, together with such other documentation reasonably requested by Seller to cause Buyer to assume the Assumed Liabilities;
(ii) the Escrow Agreement executed by Buyer; and
(iii) all other documents and instruments required hereunder to be delivered by Buyer to Seller at the Closing;
(c) Buyer shall deposit the Escrow Amount with the Escrow Agent in accordance with Article VIII and the Escrow Agreement. ------------
Transactions to be Effected at the Closing (a) Seller shall be entitled to receive immediately 8,785,819 of the Purchase Price Shares (the “Initial Purchase Price Shares”); the remaining 1,500,000 of the Purchase Price Shares (the “Escrow Purchase Price Shares”), shall be deposited in escrow pursuant to Section 2.3(d) and shall be held and disposed of in accordance with the terms of the Escrow Agreement.
(b) At the Closing, Buyer shall deliver to Seller (i) an original certificate or certificates representing the Initial Purchase Price Shares, (ii) all other documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to this Agreement, and (iii) the Estimated Closing Cash Amount, to be paid by wire transfer of immediately available funds to an account designated in writing by Seller.
(c) At the Closing, Buyer, Seller and Xxxxxx Jan Xxxxx Lijdsman, civil law notary in Amsterdam, the Netherlands (the “Escrow Agent”) shall execute and deliver the Escrow Agreement in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”).
(d) At the Closing, Seller shall deliver to Buyer (or if Buyer so elects, to a Subsidiary of Buyer) (i) certificates for the Acquired Shares duly endorsed or accompanied by stock powers duly endorsed in blank (or if the Acquired Shares are not certificated, (ii) a duly executed instrument of assignment thereof in proper form under the laws of Luxembourg, (iii) a certified copy of the share register of the Acquired Company), with any required transfer stamps affixed thereto, (iv) all other documents and instruments necessary to vest in Buyer (or its Subsidiary) all of Seller’s right, title and interest in and to the Acquired Shares, free and clear of all Liens, and (v) all other documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to this Agreement.
(e) At the Closing, Buyer and Seller shall also close on the transactions specified in the Subscription Agreement.
Closing Consideration (a) At the Closing, Buyer shall pay to Seller or its designee, and Seller or its designee shall receive on behalf of the Affiliate Sellers and Asset Sellers, in consideration for the purchase of the Shares and the Purchased Assets pursuant to Section 2.1, an amount of cash (the “Closing Consideration”) equal to $1,978,151,867 (the “Base Purchase Price”) plus any Adjusted Statutory Book Value Surplus, minus any Adjusted Statutory Book Value Deficit, plus any Other Acquired Companies Shareholders Equity Surplus, minus any Other Acquired Companies Shareholders Equity Deficit, minus the Adjustment for PRIAC IMR Tax Gross-up, in each case, determined by reference to the Estimated Closing Statement in accordance with Section 2.6 (such aggregate amount, as adjusted in accordance with Section 2.7, the “Purchase Price”).
(b) At the Closing, in accordance with the PICA FSS Reinsurance Agreements:
(i) Seller shall transfer for deposit into the applicable PICA FSS Trust Account Investment Assets (PICA) that are Authorized Investments selected and valued in accordance with the Valuation Methodologies with an aggregate fair market value equal to the Net Initial Reinsurance Settlement Amount for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement (“Transferred Investment Assets”) in accordance with Section 2.3(d); provided, if (A) the amount of the Initial Reinsurance Premium is greater than the Required Balance (as defined in the PICA FSS Reinsurance Agreements) as of the Effective Time for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement (such excess amount with respect to the applicable PICA FSS Reinsurance Agreement, the “Overfunding Amount”) and (B) the applicable Overfunding Amount is greater than the applicable portion of the Ceding Commission, then Seller shall transfer directly to the applicable Reinsurer Transferred Investment Assets with an aggregate fair market value, determined in accordance with the Valuation Methodologies, equal to the amount by which the applicable Overfunding Amount exceeds such portion of the Ceding Commission, and only the remainder of the Transferred Investment Assets shall be deposited into the applicable PICA FSS Trust Account;
(ii) The applicable Reinsurer shall transfer to the applicable PICA FSS Trust Account Authorized Investments such that, after giving effect to the transfers contemplated by Section 2.3(b)(i), the aggregate Book Value (as defined in the PICA FSS Reinsurance Agreements) in each such PICA FSS Trust Account is equal to the Required Balance (as defined in the PICA FSS Reinsurance Agreements) as of the Effective Time for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement; and
(iii) Seller shall credit to the applicable Modco Account the applicable Separate Account Assets (as such terms are defined in the PICA FSS Reinsurance Agreements).
(c) Buyer shall cause to be prepared and delivered to Seller at least five (5) Business Days prior to the anticipated Closing Date a statement setting forth an allocation of the full amount of the Ceding Commission between each of the PICA FSS Reinsurance Agreements.
(d) Seller shall undertake its ordinary course process consistent with past practice for determining any credit-related impairments or credit-related losses in value as of the Closing Date for the Transferred Investment Assets and reflect any credit- related impairments or credit-related losses in value from such process in the Transferred Investment Assets. Following the Closing, Seller shall provide reasonable documentation reasonably requested by Buyer for purposes of Xxxxx’s assessment of any credit-related impairments or credit-related losses as of the Closing Date. Seller shall sell, convey, assign, transfer and deliver to the applicable Reinsurer free and clear of all Encumbrances (other than Permitted Encumbrances or Encumbrances imposed under the applicable PICA FSS Trust Agreements) good and marketable title to the Transferred Investment Assets in respect of the PICA FSS Reinsurance Agreements (for the avoidance of doubt, together with all of Seller’s rights, title and interest thereto, including with respect to the investment income due and accrued thereon) and deposit on their behalf to the applicable PICA FSS Trust Account pursuant to Section 2.3(b)(i). Any investment assets to be transferred to a PICA FSS Trust Account shall be transferred in the manner set forth in the applicable PICA FSS Trust Agreement. All third-party costs or expenses incurred (whether prior to, on or following the Closing Date), including reasonable attorneys’ fees, in connection with the transfers of assets to the PICA FSS Trust Accounts or the Reinsurers (including any re-registrations or re-titling thereof) as contemplated by Section 2.3(b)(i) and this Section 2.3(d) shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer.
Actions at the Closing Simultaneously with the execution of this Agreement or as with regard to the transfer of securities as soon thereafter as is practicable:
(a) The Seller shall deliver to the Company (i) a copy of a certificate of good standing (or similar documents applicable for such jurisdictions) for the Seller, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Seller's jurisdiction of organization; and (ii) a certificate from the Seller’s secretary or director certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Seller’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors and the Shareholders authorizing the execution, delivery and performance of this Agreement and each document to which they are a party or bound, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, and (z) the incumbency of directors authorized to execute this Agreement or any other document to which the Seller is or is required to be a party or otherwise bound.
(b) The Company shall deliver to the Seller (i) a copy of a certificate of good standing for the Company, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Company’s jurisdiction of organization; and (ii) a certificate from the Company’s secretary or authorized officer certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Company’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors authorizing the execution, delivery and performance of this Agreement and each document to which it is a party or bound, respectively, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, including the appointment of the individuals nominated by the Seller as the directors and Mr. Xxxxx Xxxxxx as the Chief Executive Office of the Company with immediate effect at Closing, and (z) the incumbency of officers or directors authorized to execute this Agreement or any other document to which the Company is or is required to be a party or otherwise bound.
(c) Each of the Shareholders shall deliver to the Company the certificate(s) representing their Seller Securities owned by each such Shareholder, duly endorsed or accompanied by stock powers duly executed in blank and otherwise in a form acceptable for transfer on the books of the Company, such certificates may be delivered to the Company’s registrar or transfer agent.
(d) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Shareholders calculated in accordance with Section 2.1(b).
(e) The Company Preferred Shareholder shall deliver to the Company the cancellation request and executed agreements as needed for surrendering of all of the Series A Preferred Stock owned by him on the books of the Company, such cancellation request may be delivered to the Company’s transfer agent.
(f) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue all authorized shares of the Series A Preferred Stock in book entry form to the Shareholders.
(g) The Company shall deliver to the Company Preferred Shareholder a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Company Preferred Shareholder calculated in accordance with Section 2.1(c).
(h) The Company shall deliver to the Seller a copy of the written resignation of Xx. Xxx Xxxx from his position as Chief Executive Officer of the Company.
(i) The Shareholders and the Company Preferred Shareholder shall deliver to the Company counterparts duly executed by them to the Lock-Up Agreement and the Registration Rights Agreement.
(j) The Company shall deliver to the Seller duly executed copies of the Employment Agreements.
(k) The Company and the Company Preferred Shareholder shall deliver validly executed transfer documents in accordance with Section 7.3 dated as of the date hereof and effective as of the next Business Day after the date hereof.
Transactions at the Closing The closing of the transactions set forth herein (the "Closing") shall take place at York Gate, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, within ten business days after the date on which all conditions to the Closing shall have been satisfied and all legally required regulatory approvals (including the approval of the Controller of Restrictive Trade Practices, which approval shall not include any conditions or restrictions (the “Anti-trust Approval”)) shall have been obtained, or thereafter at such other time, date and place as may be agreed by the Parties (the time and date of the Closing being herein referred to as the “Closing Date”). In the event that the Closing does not take place within 90 days of the Effective Date, each Party shall be entitled to terminate this Agreement without giving rise to any right or claim by the other Party hereto, excluding claims for breaches of obligations or representations by any Party hereto prior to such termination; provided, however, that no Party may terminate this Agreement pursuant to this Section 3 if such Party's failure to fulfill any of its obligations under this Agreement shall have been a principal reason that the Closing shall not have occurred within the 90-day period of the date hereof. At the Closing, the following transactions shall occur, which transactions shall be deemed to take place simultaneously and no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents have been delivered:
(1) Seller shall transfer to the Purchaser the Purchased Shares, free and clear of any and all Encumbrances.
(2) Seller shall deliver to Purchaser duly executed irrevocable instructions from the Seller to the broker holding the Purchased Shares or to the holder registered as holding the Purchased Shares with any registration company or otherwise, instructing the electronic transfer of the Purchased Shares to the respective accounts of the Purchaser, as shall be provided to Seller by Purchaser.
(3) The Purchaser shall transfer to the bank account of the Seller the Purchase Price. The Purchase Price shall be paid in US$ by wire transfer of immediately available funds. Any tax due by Seller with respect to the Seller's sale of the Purchased Shares shall be borne exclusively by the Seller and Seller shall indemnify the Purchaser in the event that any taxing authority requires Purchaser to pay the tax liability of Seller with respect to the sale of the Purchased Shares hereunder. The Purchaser shall deliver to the Seller, promptly following its receipt, any notice, demand or claim it receives from any taxing authority in respect of any tax due with respect to the Seller and its sale of the Purchased Shares. Without derogating from Seller's indemnification obligations as set forth above and the Purchaser's right to timely comply with any requirement made to it by a taxing authority, the Seller shall have the right (at its sole discretion and expense) to directly negotiate and settle any such tax requirement with the relevant taxing authority.
Delivery of the Purchase Price At least one business day prior to the effective date of the Company’s registration statement relating to the IPO (“Registration Statement”), or the date of the exercise of the Over-Allotment Option, if any, the Purchaser agrees to deliver the Initial Purchase Price or Additional Purchase Price, as the case may be, by certified bank check or wire transfer of immediately available funds denominated in United States Dollars to Continental Stock Transfer & Trust Company, a New York corporation (“CST”), which is hereby irrevocably authorized to deposit such funds on the applicable Closing Date to the trust account which will be established for the benefit of the Company’s public shareholders, managed pursuant to that certain Investment Management Trust Agreement to be entered into by and between the Company and CST and into which substantially all of the proceeds of the IPO will be deposited (the “Trust Account”). If the IPO is not consummated within 14 days of the date the Initial Purchase Price is delivered to CST, the Initial Purchase Price shall be returned to the Purchaser by certified bank check or wire transfer of immediately available funds denominated in United States Dollars, without interest or deduction.
Payment at Closing The Borrower shall have paid (A) to the Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in Section 5.3 and any other accrued and unpaid fees or commissions due hereunder, (B) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents.
Delivery of Merger Consideration (a) As soon as practicable, but in no event later than fifteen business days, after the Effective Time, the Exchange Agent shall mail to each holder of record of one or more Certificates a letter of transmittal in customary form as reasonably agreed by the parties (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates in exchange for certificates representing the shares of Fifth Third Common Stock and any cash in lieu of fractional shares into which the shares of First National Bankshares Common Stock represented by such Certificate or Certificates shall have been converted pursuant to this Agreement. Upon proper surrender to the Exchange Agent of a Certificate or Certificates for exchange and cancellation, together with such properly completed and duly executed letter of transmittal, the holder of such Certificate or Certificates shall be entitled to receive in exchange therefor, as applicable, (i) a certificate representing that number of whole shares of Fifth Third Common Stock to which such holder of First National Bankshares Common Stock shall have become entitled pursuant to the provisions of Article I and (ii) a check representing the sum of the amount of any cash in lieu of fractional shares which such holder has the right to receive in respect of the Certificate or Certificates surrendered pursuant to the provisions of this Article II, and the Certificate or Certificates so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates.
(b) No dividends or other distributions declared after the Effective Time with respect to Fifth Third Common Stock shall be paid to the holder of any unsurrendered Certificate until the holder thereof shall surrender such Certificate in accordance with this Article II. After the surrender of a Certificate in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to shares of Fifth Third Common Stock represented by such Certificate.
(c) If any certificate representing shares of Fifth Third Common Stock is to be issued in a name other than that in which the Certificate or Certificates surrendered in exchange therefor is or are registered, it shall be a condition of the issuance thereof that the Certificate or Certificates so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other taxes required by reason of the issuance of a certificate representing shares of Fifth Third Common Stock in any name other than that of the registered holder of the Certificate or Certificates surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no transfers on the stock transfer books of First National Bankshares of the shares of First National Bankshares Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, certificates representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for certificates representing shares of Fifth Third Common Stock and Cash Consideration as provided in this Article II.
(e) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Fifth Third Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to Fifth Third Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Fifth Third. In lieu of the issuance of any such fractional share, Fifth Third shall pay to each former shareholder of First National Bankshares who otherwise would be entitled to receive such fractional share an amount in cash determined by multiplying (i) the average of the closing-sale prices of Fifth Third Common Stock on the securities market or stock exchange in which the Fifth Third Common Stock principally trades, as reported by The Wall Street Journal for the ten consecutive trading days ending on the fifth trading day immediately preceding the date of the Effective Time by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Fifth Third Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 1.4.
(f) Any portion of the Exchange Fund that remains unclaimed by the shareholders of First National Bankshares as of the first anniversary of the Effective Time shall be paid to Fifth Third. Any former shareholders of First National Bankshares who have not theretofore complied with this Article II shall thereafter look only to Fifth Third for payment of the shares of Fifth Third Common Stock and cash in lieu of any fractional shares and any unpaid dividends and distributions on the Fifth Third Common Stock deliverable in respect of each share of First National Bankshares Common Stock such shareholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of First National Bankshares, Fifth Third, the Exchange Agent or any other person shall be liable to any former holder of shares of First National Bankshares Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(g) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by Fifth Third, the posting by such person of a bond in such amount as Fifth Third may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the shares of Fifth Third Common Stock and any cash in lieu of fractional shares deliverable in respect thereof pursuant to this Agreement.
Delivery of Purchase Price The Purchase Price for the Securities shall have been delivered to the Company on the Closing Date.
