Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d). (b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Simmons First National Corp), Merger Agreement (Southwest Bancorp Inc), Merger Agreement (Simmons First National Corp)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, Any holder of shares of Southwest Target Common Stock that are issued and outstanding immediately prior to the Effective Time and with respect to which dissenters’ rights, if any, are held available by any Holder reason of the Merger pursuant to Section 262 of the DGCL or Chapter 13 of the California Corporations Code (the “CCC”) who is entitled to demand and properly demands appraisal has not voted in favor of such shares of Southwest Common Stock pursuant to, the Merger or consented thereto in writing and who complies in all respects with, the provisions of with Section 1091 262 of the OGCA (“Section 1091”) DGCL or Chapter 13 of the CCC (the “Southwest Target Dissenting ShareholdersShares”), ) shall not be converted into or be exchangeable for the right entitled to receive any of Series B Preferred Stock pursuant to this ARTICLE II, unless such holder fails to perfect, effectively withdraws or loses its dissenters’ rights under the consideration as specified in ARTICLE 2 (DGCL or the “Southwest Dissenting Shares”), but instead such Holder CCC. Such holder shall be entitled to payment receive only such rights as are granted under Section 262 of the fair value DGCL or Chapter 13 of the CCC, as applicable. If any such Southwest Dissenting Shares in accordance with holder fails to perfect, effectively withdraws or loses such dissenters’ rights under the provisions of Section 1091. At DGCL or the Effective TimeCCC, all Southwest as applicable, such Target Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at as of the Effective Time into, and shall have become, into the right to receive that number of shares of the Merger Consideration as provided Series B Preferred Stock to which such shares of Target securities are entitled pursuant to this ARTICLE II, in Section 2.1(c) each case without interest. Prior to the Effective Time, the Target shall give Orion prompt notice of this Agreement, any cash in lieu of fractional shares (if any) written demands for appraisal pursuant to Section 2.6 262 of the DGCL or Chapter 13 of the CCC, as applicable, received by the Target, withdrawals of any such written demands and any dividends other documents or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but instruments received by the Target in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx connection therewith. Orion shall have the right to participate in and direct all negotiations and proceedings with respect to any such demands. Southwest Prior to the Effective Time, the Target shall not, except with the prior written consent of XxxxxxxOrion, voluntarily which consent shall not unreasonably be withheld or delayed, make any payment with respect to, or settle, settle or offer or agree to settle, any such demand demands, or agree to do any of the foregoing. Any payments made with respect to Target Dissenting Shares shall be made solely by the Surviving Corporation, and no funds or other property shall be provided by Target, Orion or Merger Sub for such payment.
Appears in 3 contracts
Samples: Merger Agreement (Orion Acquisition Corp Ii), Merger Agreement (Orion Acquisition Corp Ii), Merger Agreement (Selena Pharmeceuticals Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest First Texas Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest First Texas Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 Sections 10.351 through 10.368 of the OGCA (“Section 1091”) TBOC (the “Southwest First Texas Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest First Texas Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest First Texas Dissenting Shares in accordance with the provisions of Section 1091Sections 10.351 through 10.368 of the TBOC. At the Effective Time, all Southwest First Texas Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest First Texas Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest First Texas Dissenting Shares in accordance with the provisions of Section 1091Sections 10.351 through 10.368 of the TBOC. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091Sections 10.351 through 10.368 of the TBOC, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091Sections 10.351 through 10.368 of the TBOC, then the right of such Holder to be paid the fair value of such Holder’s Southwest First Texas Dissenting Shares under Section 1091 Sections 10.351 through 10.368 of the TBOC shall cease and such Southwest First Texas Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.5 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest First Texas shall give Xxxxxxx Simmons prompt written notice (but in any event within 48 hours) to Xxxxxxx Simmons of any demands for appraisal of any shares of Southwest First Texas Common Stock and any withdrawals of such demands, and Xxxxxxx Simmons shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest First Texas shall not, except with the prior written consent of XxxxxxxSimmons, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
(c) Holders of Simmons Common Stock immediately prior to the Effective Time and which are held by a shareholder who is entitled to demand and properly demands appraisal of such shares of Simmons Common Stock (the “Simmons Dissenting Shares”) pursuant to, and who complies in all respects with, the provisions of Subchapter 13 of the ABCA (“Subchapter 13”) (the “Simmons Dissenting Shareholders”), shall be entitled to payment of the fair value of such Simmons Dissenting Shares in accordance with the provisions of Subchapter 13. At the Effective Time, all Simmons Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Simmons Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Simmons Dissenting Shares in accordance with the provisions of Subchapter 13. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Subchapter 13, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Subchapter 13, then the right of such holder to be paid the fair value of such holder’s Simmons Dissenting Shares under Subchapter 13 shall cease and such Simmons Dissenting Shares shall revert to shares of Simmons Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Simmons First National Corp), Merger Agreement (Simmons First National Corp)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares in the event that the applicable requirements of Southwest Section 92A.120 of the Merger Act have been satisfied, Target Common Stock that are issued and Shares which were outstanding immediately prior on the date for the determination of shareholders entitled to vote on the Effective Time Merger and which are held by any Holder who is entitled to demand were voted against the Merger and properly demands appraisal the holders of which have demanded that the Target purchase such shares of Southwest Common Stock pursuant to, and who complies at their fair value in all respects with, the provisions of Section 1091 accordance with Sections 92A.300 through 92A.500 of the OGCA Merger Act and have not otherwise failed to perfect or shall not have effectively withdrawn or lost their rights to require such shares to be purchased for cash under the Merger Act (collectively, “Section 1091”) (the “Southwest Dissenting ShareholdersShares”), shall not be converted into or be exchangeable for represent the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”Parent Common Shares pursuant to Section 3.1(b), but instead such Holder but, instead, the holders thereof shall be entitled to payment of have their shares purchased for cash at the fair value of such Southwest Dissenting Shares as agreed upon or determined in accordance with the provisions of Section 1091. At Sections 92A.460 through 92A.500 of the Merger Act.
(b) If any shareholder who holds Dissenting Shares as of the Effective TimeTime effectively withdraws or loses (through passage of time, all Southwest failure to demand or perfect, or otherwise) the right to demand and perfect dissenters’ rights under the Merger Act, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares that were Dissenting Shares shall no longer be outstanding, shall automatically be canceled converted into and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except represent only the right to receive the fair value of such Southwest Dissenting Parent Common Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant subject to Section 3.1(d)3.1(b) without interest thereon upon surrender of the Certificates representing such holder’s Target Common Shares.
(bc) Southwest The Target shall give Xxxxxxx Parent (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal purchase of any shares Target Common Shares pursuant to the exercise of Southwest Common Stock and any dissenters’ rights, withdrawals of such demands, and Xxxxxxx shall have any other instruments or notices served pursuant to the right Merger Act on the Target and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for purchase of any Target Common Shares pursuant to the exercise of dissenters’ rights under the Merger Act. Southwest The Target shall not, except with the prior written consent of XxxxxxxParent, voluntarily make or agree to make any payment with respect toto any demands for purchase of any shares of Target Common Shares pursuant to the exercise of dissenters’ rights under the Merger Act, or settle, settle or offer or agree to settle, settle any such demand for paymentdemands.
Appears in 2 contracts
Samples: Merger Agreement (Energy Fuels Inc), Merger Agreement (Uranerz Energy Corp.)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrarycontrary but only to the extent required by applicable state law, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal holders of such shares of Southwest Common Stock pursuant to, and who complies in comply with all respects with, the provisions of Section 1091 applicable law concerning the right of holders of Common Stock to dissent from the OGCA Merger and require appraisal of their shares of Common Stock (“Section 1091”) (the “Southwest "Dissenting Shareholders”), ") shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration but shall become the right to receive such consideration as may be determined to be due such Dissenting Shareholder pursuant to the law of the State of Ohio; provided, however, that (i) if any Dissenting Shareholder shall subsequently deliver a written withdrawal of his or her demand for appraisal (with the written approval of the Surviving Corporation, if such withdrawal is not tendered within 60 days after the Effective Time), or (ii) if any Dissenting Shareholder fails to establish and perfect his or her entitlement to appraisal rights as provided in Section 2.1(cby applicable law, or (iii) if within 120 days of the Effective Time neither any Dissenting Shareholder nor the Surviving Corporation has filed a petition demanding a determination of the value of all shares of the Common Stock that are issued and outstanding at the Effective Time and held by Dissenting Shareholders, then such Dissenting Shareholder or Shareholders, as the case may be, shall forfeit the right to appraisal of such shares and each such share shall thereupon be deemed to have been converted into the right to receive the Merger Consideration, without interest, according to the terms of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest . The Company shall give Xxxxxxx Purchaser (A) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal, withdrawals of demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demandsother related instruments received by the Company, and Xxxxxxx shall have (B) the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal. Southwest shall The Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of XxxxxxxMail-Well, voluntarily make any payment with respect to, or settle, settle or offer or agree to settle, settle any such demand for paymentdemand.
Appears in 2 contracts
Samples: Acquisition Agreement (Mail Well Inc), Acquisition Agreement (Mail Well Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, in the event that the applicable requirements of NRS Section 92A.120 have been satisfied, shares of Southwest Common Company Preferred Stock that are issued and which were outstanding immediately prior on the date for the determination of Company Preferred Stockholders entitled to vote on the Effective Time Merger and which are held by any Holder who is entitled to demand were voted against the Merger and properly demands appraisal the holders of which have demanded that the Company purchase such shares of Southwest Common Stock pursuant toat their fair value in accordance with NRS Sections 92A.300 through 92A.500 and have not otherwise failed to perfect or shall not have effectively withdrawn or lost their rights to require such shares to be purchased for cash under NRS 92A (collectively, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting ShareholdersShares”), shall not be converted into or be exchangeable for represent the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”Purchaser Preferred Shares pursuant to Section 2.4(d), but instead such Holder but, instead, the holders thereof shall be entitled to payment have their shares of Company Preferred Stock purchased for cash at the fair value of such Southwest Dissenting Shares as agreed upon or determined in accordance with the provisions of Section 1091. At NRS Sections 92A.460 through 92A.500.
(b) If any Company Preferred Stockholder who holds Dissenting Shares as of the Effective TimeTime effectively withdraws or loses (through passage of time, all Southwest failure to demand or perfect, or otherwise) the right to demand and perfect dissenters’ rights under NRS 92A, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares of Company Preferred Stock that were Dissenting Shares shall no longer be outstanding, shall automatically be canceled converted into and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except represent only the right to receive the fair value Purchaser Preferred Shares pursuant to and subject to Section 2.4(d) without interest thereon upon: (i) surrender to the Depositary of a Certificate; or (ii) receipt of an “agent’s message” by the Depositary (or such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoingother evidence, if any such Holder shall fail to perfect or otherwise shall waiveany, withdraw or lose of transfer as the right to appraisal under Section 1091, or a court Depositary may reasonably request) in the case of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Book-Entry Shares.
(bc) Southwest The Company shall give Xxxxxxx the Purchaser (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal purchase of any shares of Southwest Common Company Preferred Stock and any pursuant to the exercise of dissenters’ rights, withdrawals of such demands, and Xxxxxxx shall have any other instruments or notices served pursuant to NRS 90A on the right Company and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demands. Southwest demands for purchase of any shares of Company Preferred Stock pursuant to the exercise of dissenters’ rights under NRS 90A. The Company shall not, except with the prior written consent of Xxxxxxxthe Purchaser, voluntarily make or agree to make any payment with respect toto any demands for purchase of any shares of Company Preferred Stock pursuant to the exercise of dissenters’ rights under NRS 90A, or settle, settle or offer or agree to settle, settle any such demand for paymentdemands.
Appears in 2 contracts
Samples: Merger Agreement (Americas Silver Corp), Merger Agreement (Pershing Gold Corp.)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement 5.1 Pursuant to the contraryInterim Order, shares each registered Tribute Common Shareholder may exercise rights of Southwest Common Stock dissent (“Dissent Rights”) pursuant to and in the manner set forth in section 185 of the OBCA, as modified by this Section 5.1 and the Interim Order; provided, however, that are issued written objection to the Arrangement Resolution, in the manner contemplated by subsection 185(6) of the OBCA, must be sent to and outstanding received by Tribute by no later than 4:00 p.m. (Toronto time) on the second Business Day immediately prior to the Effective Time Tribute Meeting. Tribute Common Shareholders who duly exercise such rights of dissent and which who:
(a) are held by any Holder who is entitled ultimately determined to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the be paid fair value of such Southwest Dissenting for the Tribute Common Shares in accordance with the provisions respect of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to which they have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall exercised Dissent Rights will be deemed to have been converted at the Effective Time into, and shall have become, the right irrevocably transferred such Tribute Common Shares to receive the Can Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) Sub pursuant to Section 2.6 and any dividends or distributions (if any3.1(a) pursuant to Section 3.1(d).in consideration of such fair value; or
(b) Southwest shall give Xxxxxxx prompt written notice (are ultimately not entitled, for any reason, to be paid fair value for the Tribute Common Shares in respect of which they have exercised Dissent Rights will be deemed to have participated in the Arrangement on the same basis as a Tribute Common Shareholder who has not exercised Dissent Rights, as at and from the time specified in Section 3.1(e) and be entitled to receive only the consideration set forth in Section 3.1(e); but in no case will Tribute or Can Merger Sub or any event within 48 hoursother person be required to recognize such holders as holders of Tribute Common Shares after the completion of the steps set forth in Section 3.1(a) or 3.1(e), as the case may be, and each Tribute Dissenting Shareholder will cease to Xxxxxxx be entitled to the rights of any demands for appraisal a Tribute Common Shareholder in respect of any shares the Tribute Common Shares in relation to which such Tribute Dissenting Shareholder has exercised Dissent Rights and the central securities register of Southwest Common Stock and any withdrawals Tribute will be amended to reflect that such former holder is no longer the holder of such demandsTribute Common Shares as and from the Effective Time. For greater certainty, and Xxxxxxx in addition to any other restriction under section 185 of the OBCA, a Tribute Common Shareholder who has voted, or instructed a proxyholder to vote, against the Arrangement Resolution shall have the right not be entitled to participate in and direct all negotiations and proceedings exercise Dissent Rights with respect to such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for paymentArrangement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Arrangement (Pozen Inc /Nc), Agreement and Plan of Merger and Arrangement (Tribute Pharmaceuticals Canada Inc.)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Target Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder a shareholder who did not vote in favor of the Merger (or consent thereto in writing) and who is entitled to demand and properly demands appraisal the fair value of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 10A-2-13.21 et seq. of the OGCA (“Section 1091”) ABCL (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE Article 2 (the “Southwest Dissenting Shares”), but instead such Holder holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares shares in accordance with the provisions of Section 109110A-2-13.21 et seq. At of the ABCL (and at the Effective Time, all Southwest such Dissenting Shares shall no longer be outstanding, outstanding and shall automatically be canceled and retired cancelled and shall cease to exist, and each Holder of Southwest Dissenting Shares such holder shall cease to have any rights with respect thereto, except the right rights provided for pursuant to the provisions of Section 10A-2-13.21 et seq. of the ABCL and this Section 3.3), unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost rights to demand or receive the fair value of such Southwest shares of Target Common Stock under the ABCL. If any Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder Shareholder shall fail have failed to perfect or otherwise shall waivehave effectively withdrawn or lost such right, withdraw or lose such holder’s shares of Target Common Stock shall thereupon be treated as if they had been converted into and become exchangeable for the right to appraisal under Section 1091receive, or a court as of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time intoTime, and shall have become, the right to receive a portion of the Merger Consideration as provided consideration exchangeable for each such share of Target Common Stock a specified in Section 2.1(c) of this AgreementArticle 2, without any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)interest thereon.
(b) Southwest Target shall give Xxxxxxx Buyer (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal written notices to exercise dissenter’s rights in respect of any shares of Southwest Target Common Stock and any Stock, attempted withdrawals of such demands, notices and Xxxxxxx shall have any other instruments served pursuant to the right ABCL and received by Target relating to shareholders’ dissenters’ rights and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for fair value under the ABCL. Southwest Target shall not, except with the prior written consent of XxxxxxxBuyer, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 2 contracts
Samples: Merger Agreement (Banctrust Financial Group Inc), Merger Agreement (Banctrust Financial Group Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement Plan to the contrary, shares of Southwest Mid Am Common Stock that which are issued and outstanding immediately prior to the Effective Time and which are held by any Holder shareholders who is did not vote in favor of the adoption of this Plan, who are entitled to demand and properly demands appraisal the fair cash value of such shares of Southwest Mid Am Common Stock pursuant tounder Section 1701.84 of the OGCL, and who complies in comply with all respects with, of the relevant provisions of such Section 1091 of the OGCA (“Section 1091”) (the “Southwest "Mid Am Dissenting Shareholders”), Shares") shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of for the fair cash value of such Southwest Dissenting Shares in accordance shares upon strict compliance with the applicable provisions the OGCL (unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their dissenters' rights under the OGCL). If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such dissenters' rights, such holder's shares of Section 1091. At the Effective Time, all Southwest Dissenting Shares Mid Am Common Stock shall no longer thereupon cease to be outstanding, shall automatically be canceled and retired and retired, shall cease to exist, exist and shall otherwise be treated as Old Shares and each Holder holder of Southwest Dissenting a certificate formerly representing such Old Shares shall cease to have any rights with respect thereto, except the right to receive the fair value receive, without interest, upon exchange of such Southwest Dissenting Shares holder's Old Certificate in accordance with Section 4.3, a New Certificate representing the provisions New Shares and any payment to which such holder is entitled pursuant to this Article IV. Mid Am shall give Citizens (i) prompt notice of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal written demands for payment for any Mid Am Common Stock under Section 10911701.85 of the OGCL, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any attempted withdrawals of such demands, and Xxxxxxx shall have any other instruments served pursuant to the right OGCL and received by Mid Am relating to dissenters' rights, and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsthe exercise of dissenters' rights under the OGCL. Southwest Mid Am shall not, except with the prior written consent of XxxxxxxCitizens, voluntarily make any payment with respect toto any demands for payments for Mid Am Common Stock under Section 1701.84 of the OGCL, offer to settle or settle, or offer or agree to settle, settle any such demands or approve any withdrawal of any such demands.
(b) Notwithstanding anything in this Plan to the contrary, shares of Citizens Common Stock which are issued and outstanding immediately prior to the Effective Time and which are held by shareholders who did not vote in favor of the adoption of this Plan, who are entitled to demand the fair cash value of such shares of Citizens Common Stock under Section 1701.84 of the OGCL, and who comply with all of the relevant provisions of such Section (the "Citizens Dissenting Shares") shall be converted into the right to receive payment for paymentthe fair cash value of such shares upon strict compliance with the applicable provisions of the OGCL (unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their dissenters' rights under the OGCL). If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such dissenters' rights, all rights of such holder with respect to such holder's shares of Citizens Common Stock in question shall be restored, all distributions which, but for the suspension of rights with respect to such holder's shares of Citizens Common Stock in question, would have been made shall be made to the holder of record of the shares of Citizens Common Stock in question at the time of termination, and the effect of any recapitalization contemplated by the Articles Amendments which, but for the suspension of rights with respect to such holder's shares of Citizens Common Stock in question, would have been effected shall be effected as to such shares. Prior to the Effective Time, Citizens shall give Mid Am (i) prompt notice of any written demands for payment for any Citizens Common Stock under Section 1701.84 of the OGCL, attempted withdrawals of such demands, and any other instruments served pursuant to the OGCL and received by Citizens relating to dissenters' rights, and (ii) the opportunity to participate in all negotiations and proceedings with respect to the exercise of dissenters' rights under the OGCL. Prior to the Effective Time, Citizens shall not, except with the prior written consent of Mid Am, voluntarily make any payment with respect to any demands for payments for Citizens Common Stock under Section 1701.84 of the OGCL, offer to settle or settle any such demands or approve any withdrawal of any such demands.
Appears in 2 contracts
Samples: Merger Agreement (Mid Am Inc), Agreement and Plan of Merger (Citizens Bancshares Inc /Oh/)
Dissenting Shareholders. No shareholder of the Company shall have ----------------------- exercised his or its dissenter's rights under Section 910 of the NYBCL (the "Dissenting Shareholder") or filed a notice of election to dissent in accordance with Section 623 of the NYBCL (The "Dissenting Notice"). In the event any Dissenting Notice is properly delivered to the Company by any Dissenting Shareholder, the Company shall immediately notify and forward such Dissenting Notice to Parent and Acquisition Sub. Within 5 business days after receipt of such Dissenting Notice by Parent and Acquisition Sub, Parent shall notify the Company (the "Response Notice") that Parent and Acquisition Sub shall take either of the following 2 actions: (x) Parent and Acquisition Sub will consummate the Merger notwithstanding the existence of the Dissenting Shares with no further obligation on the part of the Company or (y) Parent and Acquisition Sub will not consummate the Merger unless and until the Shareholder Representative enters into an agreement in form and substance satisfactory to Parent in its sole discretion (the "Dissenting Agreement") pursuant to which the Shareholder Representative, for itself and on behalf of all of the other shareholders of the Company agrees (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued be responsible for any and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder amounts to be paid by the fair value Surviving Corporation and/or Parent) to any Dissenting Shareholder, (2) to indemnify the Surviving Corporation and Parent of such Holder’s Southwest any and all losses, claims, damages, costs and expenses relating to the Dissenting Shares and (iii) that under Section 1091 no circumstances shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive Parent pay more than the Merger Consideration as provided for 100% of the outstanding shares of Company Common Stock. In the event the Shareholder Representative fails to execute the Dissenting Agreement within five (5) business days after receipt of the Response Notice, the Company hereby agrees to pay to Parent in Section 2.1(c) immediately available funds a breakup fee in an amount equal to $1,000,000 plus all of the documented costs and expenses incurred by Parent and its affiliates in connection with the transactions contemplated by this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 2 contracts
Samples: Merger Agreement (MJD Communications Inc), Merger Agreement (MJD Communications Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, in the event that the applicable requirements of Section 1300(b) of the CCC have been satisfied, shares of Southwest Company Common Stock that are issued and which were outstanding immediately prior on the date for the determination of shareholders entitled to vote on the Effective Time Merger and which are held by any Holder who is entitled to demand were voted against the Merger and properly demands appraisal the holders of which have demanded that the Company purchase such shares of Southwest Common Stock pursuant to, and who complies at their fair market value in all respects with, the provisions of accordance with Section 1091 1301 of the OGCA CCC and have submitted such shares for endorsement in accordance with Section 1302 of CCC and have not otherwise failed to perfect or shall not have effectively withdrawn or lost their rights to require such shares to be purchased for cash under the CCC (collectively, “Section 1091”) (the “Southwest Dissenting ShareholdersShares”), shall not be converted into or be exchangeable for represent the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”Parent Common Shares pursuant to Section 2.1(a), but instead such Holder but, instead, the holders thereof shall be entitled to payment of have their shares purchased by Parent for cash at the fair market value of such Southwest Dissenting Shares as agreed upon or determined in accordance with the provisions of Section 10911300 et seq. At of the CCC.
(b) If any shareholder who holds Dissenting Shares as of the Effective TimeTime effectively withdraws or loses (through passage of time, all Southwest failure to demand or perfect, or otherwise) the right to demand and perfect dissenters’ rights under the CCC, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares that were Dissenting Shares shall no longer be outstanding, shall automatically be canceled converted into and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, represent only the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant subject to Section 3.1(d)2.1 without interest thereon upon surrender of the Certificates representing such holder’s shares.
(bc) Southwest The Company shall give Xxxxxxx Parent (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal purchase of any shares of Southwest Company Common Stock and any pursuant to the exercise of dissenters’ rights, withdrawals of such demands, and Xxxxxxx shall have any other instruments or notices served pursuant to the right CCC on the Company and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for purchase of any shares of Company Common Stock pursuant to the exercise of dissenters’ rights under the CCC. Southwest The Company shall not, except with the prior written consent of XxxxxxxParent, voluntarily make or agree to make any payment with respect toto any demands for purchase of any shares of Company Common Stock pursuant to the exercise of dissenters’ rights under the CCC, or settle, settle or offer or agree to settle, settle any such demand for paymentdemands.
Appears in 2 contracts
Samples: Merger Agreement (Sphere 3D Corp), Merger Agreement (Overland Storage Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares but only in the circumstances and to the extent provided by the laws of Southwest Common Stock that the State of Florida, Merged Co Shares which are issued and outstanding immediately prior to the Effective Time and which are held by shareholders (other than Merged Co or any Holder subsidiary of Merged Co) who is were entitled to demand and properly demands appraisal of did not vote such shares in favor of Southwest Common Stock pursuant tothe Merger and who shall have properly and timely delivered to Merged Co a written demand for payment of the fair value of Merged Co Shares in the manner provided in, and who complies in complied with all respects with, of the relevant provisions of Section 1091 the laws of the OGCA State of Florida (“Section 1091”"Dissenting Shares") (the “Southwest Dissenting Shareholders”), shall not be converted into the right to receive, or be exchangeable for for, the right to receive any of Per Share Merger Consideration but, instead, the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder holders thereof shall be entitled to such rights as are granted by the laws of the State of Florida; provided, however, that (i) if any holder of Dissenting Shares shall subsequently deliver a written withdrawal of his demand for payment of the fair value of such Southwest Dissenting Merged Co Shares in accordance with and the provisions Board of Section 1091. At the Effective Time, all Southwest Dissenting Shares Directors shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect consent thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, or (ii) if any such Holder shall fail holder fails to establish and perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled his entitlement to the relief provided by Section 1091, then in the laws of the State of Florida or if the right of such Holder holder to be paid receive relief otherwise terminates pursuant to the fair value laws of the State of Florida, such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Merged Co Shares shall thereupon be deemed to have been converted at the Effective Time into, and shall have become, into the right to receive receive, and to have become exchangeable for, as of the Effective Time, the Per Share Merger Consideration as provided in Section 2.1(cConsideration. Merged Co shall give the Company (i) prompt notice of this Agreementany written objections, demands for payment, withdrawals of demands for payment and any cash in lieu of fractional shares (if any) other instrument served pursuant to Section 2.6 the laws of the State of Florida received by Merged Co and any dividends or distributions (if anyii) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for payment under the laws of the State of Florida. Southwest shall Prior to the Effective Time, Merged Co will not voluntarily make any Payment with respect to any demands for payment and will not, except with the prior written consent of Xxxxxxxthe Company, voluntarily make any payment with respect to, or settle, settle or offer or agree to settle, settle any such demand for paymentdemands.
Appears in 1 contract
Samples: Merger Agreement (Brush Creek Mining & Development Co Inc)
Dissenting Shareholders. (a) Notwithstanding anything in any provision of this Agreement to the contrary, shares each share of Southwest Common Stock ARIA common stock that are is issued and outstanding immediately prior to the Effective Time Closing and which are that is held by any Holder a shareholder of ARIA who is entitled to demand has not voted in favor of this Agreement or consented thereto in writing and properly demands appraisal who shall have otherwise perfected such holder’s dissenters’ rights in accordance with and as contemplated by Section 262 of the DGCL (each such shares of Southwest Common Stock pursuant toshareholder, a “Dissenting Stockholder”, and who complies in all respects witheach share of ARIA common stock held by such shareholder, the provisions of Section 1091 of the OGCA (a “Section 1091Dissenting Share”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”)canceled, extinguished and converted, but instead such Holder shall be entitled to payment receive from the Surviving Corporation the value of the fair value shares of ARIA common stock held by such Southwest Dissenting Shares in accordance with Stockholder as determined pursuant to Section 262 of the provisions of Section 1091. At the Effective TimeDGCL; provided, all Southwest however, that if such Dissenting Shares shall no longer be outstandingStockholder fails to perfect, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of or effectively withdraws or loses such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the holder’s right to appraisal of and payment for such holder’s shares under Section 1091262 of the DGCL, or a court each share of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right ARIA common stock of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Stockholder shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at into and to have become exchangeable for, as of the Effective Time into, and shall have becomeClosing, the right to receive shares of TriCord common stock, and such share of ARIA common stock shall no longer be a Dissenting Share. In such event, ARIA shall deliver the Merger Consideration as provided in Section 2.1(cnumber of shares of TriCord common Stock to which such shareholder is entitled (without interest) upon surrender by such shareholder of this Agreement, any cash in lieu the certificate or certificates representing the shares of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)ARIA common stock held by such shareholder.
(b) Southwest ARIA shall give Xxxxxxx prompt provide notice in accordance with the DGCL to each shareholder that is entitled to appraisal rights; provided that if the ARIA shareholders have approved the Merger by written consent pursuant to Section 228 of the DGCL, ARIA shall provide notice (but promptly, and in any event within 48 hoursfive (5) business days, after such stockholder approval is obtained. ARIA shall give prompt notice to Xxxxxxx TriCord of any demands received by ARIA for appraisal of any shares of Southwest Common Stock ARIA common stock. The Surviving Corporation shall promptly pay to any Dissenting Stockholder any and any withdrawals of such demands, all amounts due and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect owing to such demands. Southwest shall notholder as a result of any settlement of, except with or determination by the prior written consent court of Xxxxxxx, voluntarily make any payment the city or county in Virginia where its registered office is located with respect to, or settle, or offer or agree to settle, any such demand for paymentdemands.
Appears in 1 contract
Samples: Merger Agreement (TriCord Hurricane Holdings, Inc.)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which that are held by any Holder Shareholders who is entitled to demand and properly demands appraisal of (i) have not voted such shares in favor of Southwest Common Stock pursuant tothe Merger, and who complies in all respects with, (ii) have otherwise complied with the relevant provisions of Section 1091 5.13 of the OGCA TBCA and (“Section 1091”iii) as of the Effective Time, shall not have effectively withdrawn or lost such right to relief as a dissenting Shareholder (the “Southwest "Dissenting Shareholders”), Shares") shall not be converted into or be exchangeable for the a right to receive any of the consideration as specified Per Share Amount described in ARTICLE 2 (the “Southwest Dissenting Shares”Section 2.1(b), but instead such Holder . The holders thereof shall be entitled only to such rights as are granted by Section 5.13 of the TBCA. Each holder of Dissenting Shares who becomes entitled to payment for such Dissenting Shares pursuant to Section 5.13 of the fair value of such Southwest Dissenting Shares TBCA shall receive payment therefor from the Surviving Corporation in accordance with the provisions TBCA; provided, however, that if any such holder of Section 1091. At the Effective Time, all Southwest Dissenting Shares (i) shall no longer be outstandinghave failed to establish his entitlement to relief as a dissenting Shareholder as provided in Section 5.13 of the TBCA, (ii) shall automatically be canceled have withdrawn his demand for relief as a dissenting Shareholder with respect to such Dissenting Shares or lost his right to relief as a dissenting Shareholder and retired and payment for his Dissenting Shares under Section 5.13 of the TBCA or (iii) shall cease have failed to existfile a complaint with the appropriate court seeking relief as to determination of the value of all Dissenting Shares within the time provided in Section 5.13 of the TBCA, such holder shall forfeit the right to relief as a dissenting Shareholder with respect to such Dissenting Shares and each Holder of Southwest such Dissenting Shares Share shall cease to have any rights with respect thereto, except be converted into the right to receive the fair value of such Southwest Dissenting Shares in accordance with Per Share Amount from the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration Surviving Corporation as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest 2.4. The Company shall give Xxxxxxx Parent prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of received by the Company prior to the Effective Time, any shares of Southwest Common Stock and any attempted withdrawals of such demandsdemands and any other instruments served pursuant to the TBCA and received by the Company relating to Shareholders' rights of appraisal, and Xxxxxxx Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest The Company shall not, except with the prior written consent of XxxxxxxParent, voluntarily make any payment with respect to, or settle, settle or offer or agree to settle, any such demand for paymentdemands.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock no Company Share that are issued and is outstanding immediately prior to the Effective Time and Time, the holder of which are held by any Holder who is entitled to demand and (i) has not voted in favor of the Merger or consented in writing thereto, (ii) has properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, complied with the provisions of Section 1091 262 of the OGCA DGCL as to appraisal rights, and (iii) has not effectively withdrawn or lost its rights to appraisal (each a “Section 1091”) (the “Southwest Dissenting ShareholdersShare”), shall not be deemed to be converted into or be exchangeable for and to represent the right to receive any the Common Merger Consideration, and the holders of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall if any, will only be entitled to receive payment from the Surviving Corporation of the fair appraised value of such Southwest Dissenting Shares to the extent permitted by and in accordance with the provisions of Section 1091. At 262 of the DGCL; provided, however, that if the holder of any Dissenting Shares fails to perfect or effectively withdraws or loses the right to appraisal and payment under Section 262 of the DGCL, such holder’s Dissenting Shares shall thereupon automatically be deemed, as of the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except been cancelled and extinguished and been converted into the right to receive receive, without interest, the fair value of such Southwest Dissenting Shares Common Merger Consideration in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d3.2(d).
(b) Southwest The Company shall give Xxxxxxx Purchaser (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal of any shares of Southwest Common Stock and any appraisal, withdrawals of such demandsdemands and any other instruments related thereto served pursuant to the DGCL and received by the Company, and Xxxxxxx shall have (ii) the right opportunity to participate in and direct all negotiations and proceedings with respect to such demandsdemands for appraisal under the DGCL. Southwest The Company shall not, except with the prior written consent of XxxxxxxPurchaser, (x) voluntarily make any payment or offer to make any payment with respect to, or settle, settle or offer or agree to settle, any claim or demand in respect of any Dissenting Shares, (y) approve any withdrawal of any demands for appraisal (unless such approval creates no obligations for the Company except the obligation to pay, in accordance with this Agreement, the Merger Consideration with respect to the applicable Dissenting Shares, without interest thereon, as if such shares had never been Dissenting Shares), or (z) waive any failure to timely deliver a written demand for paymentappraisal or timely take any other action to perfect appraisal rights in accordance with the DGCL.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are 2.6.1 Shares issued and outstanding immediately prior to the Effective Time and which Completion Date that are held by any Holder holder who has, either prior to or during the EGM, objected in writing, or objected orally (which objection has been recorded by HMI), to the Transaction, and waived its voting right and which is entitled to demand and properly demands appraisal HMI to buy back Shares of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, holder at the provisions of Section 1091 of the OGCA (“Section 1091”) fair market price (the “Southwest "Appraisal") pursuant to and in compliance with the M&A Act and the Company Act (such Shares, "Dissenting Shareholders”Shares" and the holder of Dissenting Shares, a "Dissenting Shareholder"), shall not be converted into or be exchangeable for have the right to receive any portion of the consideration as specified in ARTICLE 2 (Consideration, unless and until such Dissenting Shareholder shall have failed to perfect, or, to the “Southwest extent permitted by applicable Law, until such holder shall have effectively withdrawn or lost, such holder's right to Appraisal under applicable Law. Dissenting Shares”), but instead such Holder Shares shall be entitled to payment of the fair value of such Southwest Dissenting Shares treated in accordance with the provisions of Section 1091. At M&A Act and the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Company Act.
(b) Southwest 2.6.2 Immediately after the EGM, HMI shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx promptly notify ASML of any demands for appraisal Appraisal of any shares of Southwest Common Stock and any Shares, attempted withdrawals of such demandsnotices or demands and any other instruments received by HMI relating to rights to Appraisal, and Xxxxxxx ASML shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest .
2.6.3 Prior to the Completion Date, HMI shall not, except with without the prior written consent of XxxxxxxASML (which consent shall not be unreasonably withheld or delayed), voluntarily make any payment with respect to, settle or offer to settle, or approve any withdrawal of any such demands; provided, however, that HMI shall have the right to make any payment with respect to, settle or offer or agree to settle, or approve any withdrawal of any such demand demands, in each case at a per Share price up to but not more than the Consideration.
2.6.4 In case HMI will have to make any payments to Dissenting Shareholders, the Parties agree that the provisions of Schedule 7 (Funding of payment for paymentDissenting Shares) shall apply.
2.6.5 The consummation of the Transaction shall take place on the Completion Date irrespective of whether (i) HMI and any Dissenting Shareholder have reached an agreement on the buy-back of the Dissenting Shares, (ii) there is any on-going legal proceeding between HMI and any Dissenting Shareholder related to buy-back of Dissenting Shares, and (iii) HMI has yet to buy back any and all Dissenting Shares. Completion is conditional upon satisfaction or waiver of the following Completion Conditions:
3.1 All obligatory notifications and filings with the Competition Authorities in connection with the Transaction as listed in Schedule 2 (Merger Clearance Filings) (the "Merger Clearance Filings") shall have been made and each such Competition Authority, to the extent required before Completion, shall have:
(a) given the approvals, consents or clearances required under relevant applicable Law for the completion of the Transaction;
(b) rendered a decision that no approval, consent or clearance is required under relevant applicable Law for the completion of the Transaction;
(c) failed to render a decision within the applicable waiting period under relevant applicable Law and such failure is considered under such Law to be a grant of all requisite consents or clearances under such Law; or
(d) referred the Transaction or any part thereof to another Competition Authority in accordance with relevant applicable Law and one of the requirements listed in items (a) through (c) above has been fulfilled in respect of such other Competition Authority.
3.2 HMI shall have convened an extraordinary shareholders meeting at which a resolution will have been duly passed by the holders representing at least two-thirds of the Shares to approve the Transaction.
3.3 All notifications, filings and applications with the Governmental Authorities as set out in Schedule 3 (Taiwan Regulatory Approvals) (the "Taiwan Regulatory Approvals") shall have been made in the form as required by Law and each such Governmental Authority, to the extent required by Law before Completion, shall have:
(a) given the approvals, consents or clearances required under applicable Law for the completion of the Transaction;
(b) rendered a decision that no approval, consent or clearance is required under applicable Law for the completion of the Transaction; or
(c) failed to render a decision within the applicable waiting period under applicable Law and such failure is considered under such Law to be a grant of all requisite approvals, consents or clearances under such Law.
3.4 Either:
(a) the Committee on Foreign Investment in the United States ("CFIUS") shall have provided notice to the Parties that CFIUS has determined that (i) the Transaction is not a covered transaction and not subject to review under Section 721 of the Defense Production Action of 1950, as amended ("Section 721") or (ii) there are no unresolved national security concerns with respect to the Transaction, and that action under Section 721 is concluded with respect to the Transaction; or
(b) following an investigation, the President of the United States shall have announced a decision not to take any action to suspend or prohibit consummation of the Transaction under Section 721 or the applicable time period for the President to take such action shall have expired; (the "CFIUS Approval").
3.5 There shall not have been any material breach by HMI of any of its obligations, covenants and undertakings set out in Clause 6.
3.6 None of the ASML Warranties shall have been found to be, or no event occurring or matter arising which renders any of the ASML Warranties to be, untrue or inaccurate in any material respect (except for such ASML Warranties that contain an express materiality qualification, which shall not be untrue or inaccurate in all respects) on and as at the Signing Date and as at Completion, unless expressly made as of a specified date, then only as of such specified date.
3.7 None of the HMI Warranties set out in Paragraph 7 (Intellectual Property) of Schedule 5 (HMI Warranties) shall have been found, or no event occurring or matter arising which renders any of the HMI Warranties set out in Paragraph 7 (Intellectual Property) of Schedule 5 (HMI Warranties) to be, untrue or inaccurate to the extent that it has or will have a Material Adverse Effect on the HMI Group, and none of all other HMI Warranties shall have been found to be, or no event occurring or matter arising which renders any such other HMI Warranties being, untrue or inaccurate in any material respect (except for such that contain an express materiality qualification, which shall not be untrue or inaccurate in all respects), on and as at the Signing Date and as at Completion, unless expressly made as of a specified date, then only as of such specified date.
3.8 No event or circumstance shall have occurred between the date of this Agreement and Completion which has or will have a Material Adverse Effect on the HMI Group.
3.9 No event or circumstance shall have occurred between the date of this Agreement and Completion which has or will have a Material Adverse Effect on the ASML Group.
3.10 No restraining Governmental Order or permanent injunction or other Governmental Order preventing Completion (other than one issued by or at the request of a Competition Authority which shall be complied with pursuant to Clause 4.2.5) shall be in effect immediately prior to Completion.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrarycontrary herein, shares any Company Share for which any Company Shareholder (such Company Shareholder, a “Dissenting Company Shareholder”) (i) has not voted in favor of Southwest Common Stock that are issued the Company Merger or consented to it in writing, or has waived its rights of appraisal and outstanding immediately prior to (ii) has demanded the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant toCompany Shares in accordance with, and who complies has complied in all respects with, NRS 92A.380-390 (collectively, the provisions of Section 1091 of the OGCA (“Section 1091Dissenting Company Shares”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value applicable portion of Transaction Share Consideration pursuant to Section 2.1(d) (vii). From and after the Company Merger Effective Time, (A) the Dissenting Company Shares shall be cancelled and extinguished and shall cease to exist and (B) the Dissenting Company Shareholders shall be entitled only to such Southwest Dissenting Shares in accordance with rights as may be granted to them under NRS 92A.380-390 and shall not be entitled to exercise any of the provisions voting rights or other rights of Section 1091. Notwithstanding a stockholder of the foregoingSecond Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting Company Shareholder effectively withdraws or loses such Holder shall fail appraisal rights (through failure to perfect such appraisal rights or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091otherwise), then the right of Company Shares held by such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Company Shareholder (1) shall cease and such Southwest Dissenting Shares shall no longer be deemed to have be Dissenting Company Shares and (2) shall be treated as if they had been converted automatically at the Company Merger Effective Time into, and shall have become, into the right to receive the Merger applicable portion of the Transaction Share Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.1(d) ( vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any dividends other documents or distributions (if anyagreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.6(e). Each Dissenting Company Shareholder who becomes entitled to payment for his, her or its Dissenting Company Shares pursuant to Section 3.1(d).
(b) Southwest the NRS shall receive payment thereof from the Company in accordance with the NRS. The Company shall give Xxxxxxx CBRG and HoldCo prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal of any shares of Southwest Common Stock and any Company Share, attempted withdrawals of such demandsdemands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by the Company, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep CBRG and HoldCo reasonably apprised as to the status and developments related to such matters, and Xxxxxxx CBRG and HoldCo shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to all such demands. Southwest The Company shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of XxxxxxxCBRG and HoldCo (prior to the Closing) or the CBRG Sponsor (after the Closing), voluntarily make any payment or deliver any consideration (including HoldCo Shares) with respect to, or settle, settle or offer or agree to settlesettle any such demands.
(b) Notwithstanding anything to the contrary herein and in accordance with the Cayman Companies Law, any CBRG Share issued and outstanding immediately prior to the CBRG Merger Effective Time for which any CBRG Shareholder (such demand CBRG Shareholder, a “Dissenting CBRG Shareholder”) has validly exercised properly in writing their dissenters’ rights for paymentsuch CBRG Shares in accordance with Section 238 of the Cayman Companies Law, and has otherwise complied in all respects with all of the provisions of the Cayman Companies Law relevant to the exercise and perfection of dissenters’ rights (collectively, the “Dissenting CBRG Shares”) shall not be converted into the right to receive, and the applicable Dissenting CBRG Shareholder shall have no right to receive, the applicable portion of the CBRG Merger Consideration pursuant to Section 2.1(c) (vii) unless and until such Dissenting CBRG Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law. From and after the CBRG Merger Effective Time, (A) the Dissenting CBRG Shares shall no longer be outstanding and shall automatically be cancelled and extinguished by virtue of the CBRG Merger and shall cease to exist and (B) the Dissenting CBRG Shareholders shall be entitled only to such rights as may be granted to them under Section 238 of the Cayman Companies Law and shall not be entitled to exercise any of the voting rights or other rights of a shareholder of the First Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting CBRG Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law, then the CBRG Shares held by such Dissenting CBRG Shareholder (1) shall no longer be deemed to be Dissenting CBRG Shares and (2) shall be treated as if they had been converted automatically at the CBRG Merger Effective Time into the right to receive the applicable portion of the CBRG Merger Consideration pursuant to Section 2.1(c) (vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables described in Section 2.6(e). Each Dissenting CBRG Shareholder who becomes entitled to payment for his, her or its Dissenting CBRG Shares pursuant to the Cayman Companies Law shall receive payment thereof from CBRG in accordance with the Cayman Companies Law. CBRG shall give HoldCo prompt notice of any written demands for dissenters’ rights of any CBRG Share, attempted withdrawals of such demands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by CBRG, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep HoldCo reasonably apprised as to the status and developments related to such matters, and HoldCo shall have the opportunity to participate in all negotiations and proceedings with respect to all such demands. CBRG shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of HoldCo (prior to the Closing) or the CBRG Sponsor (after the Closing), make any payment or deliver any consideration (including HoldCo Shares) with respect to, settle or offer or agree to settle any such demands.
Appears in 1 contract
Samples: Business Combination Agreement (Alterola Biotech Inc.)
Dissenting Shareholders. (a1) Notwithstanding anything in any provision of this Agreement to the contrary, shares each share of Southwest SMI Preferred Stock and SMI Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects withStock, the holder of which has not voted in favor of the Merger, that has perfected such holder’s right to seek relief as a dissenting shareholder in accordance with the applicable provisions of Section 1091 of the OGCA California Code (“Section 1091Appraisal”) and has not effectively withdrawn or lost such right to Appraisal (the a “Southwest Dissenting ShareholdersShare”), shall not be converted into or be exchangeable for the represent a right to receive any of the consideration as specified in this ARTICLE 2 (the “Southwest Dissenting Shares”)II, but instead such Holder the holder thereof shall be entitled only to payment such rights as are granted by the applicable provisions of the fair value of such Southwest California Code; provided, however, that any Dissenting Shares in accordance with Share, held by a person at the provisions of Section 1091. At Effective Time who shall, after the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled Appraisal pursuant to the relief provided by Section 1091California Code, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been be converted at into, as of the Effective Time into, and shall have becomeTime, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Consideration.
(b2) Southwest The Surviving Corporation shall give Xxxxxxx (i) Feiya and Crane prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands written demand for appraisal received by SMI pursuant to the applicable provisions of any shares of Southwest Common Stock and any withdrawals of such demandsthe California Code, and Xxxxxxx shall have (ii) Feiya the right opportunity to participate in and direct all negotiations and proceedings with respect to such demands. Southwest SMI shall not, except with the prior written consent of XxxxxxxFeiya, voluntarily make any payment with respect to, or settle, to any such demands (other than payment of the Merger Consideration payable for such shares of SMI Capital Stock) or offer to settle or agree to settle, settle any such demand demands. Notwithstanding the foregoing, to the extent that Feiya or SMI (i) makes any payment or payments in respect of any Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement, (ii) incurs any other costs or expenses in respect of any Dissenting Shares (excluding payments for paymentsuch shares) (together with (i) in this paragraph, “Excess Dissenting Share Payments”), Feiya shall be entitled to recover under the terms of ARTICLE X hereof the amount of such Excess Dissenting Share Payments without regard to the Basket Amount (as defined in Section 10.2(c)). The Surviving Corporation and SMI shall provide to Feiya (i) prompt notice of any written demands(s) for Appraisal, withdrawal of demands for Appraisal and any other instruments served pursuant to the applicable provisions of the California Code relating to the Appraisal process received by the Surviving Corporation or SMI, and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for Appraisal under the California Code.
(3) To the extent that SMI Capital Stock are Dissenting Shares, upon the request of Feiya, Crane shall deliver to Feiya the Crane Common Stock and cash that such holders of Dissenting Shares would otherwise be entitled to receive, respectively, pursuant to Sections 2.2(b)(ii) and 2.2(b)(iii). Upon the request of Feiya, Crane shall also deliver to Feiya shares of Feiya Common Stock equal to the number of shares of Crane Common Stock delivered to Feiya in accordance with the first sentence of this Section 2.2(f)(ii)(3).
Appears in 1 contract
Samples: Acquisition Agreement (Silicon Motion Technology CORP)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Reliance Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Reliance Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 351.455 of the OGCA GBCL (“Section 1091351.455”) (the “Southwest Reliance Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Reliance Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Reliance Dissenting Shares in accordance with the provisions of Section 1091351.455. At the Effective Time, all Southwest Reliance Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Reliance Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Reliance Dissenting Shares in accordance with the provisions of Section 1091351.455. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091351.455, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091351.455, then the right of such Holder to be paid the fair value of such Holder’s Southwest Reliance Dissenting Shares under Section 1091 351.455 shall cease and such Southwest Reliance Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest Reliance shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Reliance Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest Reliance shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
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Dissenting Shareholders. (a) Notwithstanding anything to the contrary in this Agreement Agreement, but only to the contraryextent required by the WBCL, any holder of shares of Southwest Seller Common Stock that are issued who perfects such holder’s dissenter’s rights, if applicable and outstanding immediately prior to available, in accordance with and as contemplated by Subchapter 13 of the WBCL and has not effectively withdrawn or lost such right as of the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for receive the right to receive any of the consideration Per Share Merger Consideration as specified set forth in ARTICLE 2 (the “Southwest Dissenting Shares”)Sections 3.1 and 3.2, but instead such Holder shall be entitled to receive from the Surviving Company only the value of such shares in cash as determined pursuant to such provision of the WBCL (any shareholder duly making such demand being hereinafter called a “Dissenting Shareholder”); provided, that no such payment shall be made to any such Dissenting Shareholder unless and until such Dissenting Shareholder has complied with the applicable provisions of the WBCL and surrendered to Seller the certificate or certificates representing the shares for which payment is being made. Seller shall give Buyer prompt notice upon receipt by Seller of any such demands for payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Seller Common Stock and any of withdrawals of such demandsnotice and any related instruments provided pursuant to the WBCL, and Xxxxxxx Buyer shall have the right to participate in and direct all negotiations and proceedings with respect to any such demands. Southwest Seller shall not, except with the prior written consent of XxxxxxxBuyer, voluntarily make any payment with respect to, or settle, offer to settle or offer or agree to settleotherwise negotiate, any such demands, or knowingly waive any failure to timely deliver a written demand for paymentappraisal or the taking of any other action as may be necessary to perfect dissenter’s rights. In the event that after the Effective Time a Dissenting Shareholder fails to perfect, or effectively withdraws or loses, such holder’s dissenters’ rights, the Surviving Company shall issue and deliver the Per Share Merger Consideration to which such holder of shares of Seller Common Stock is entitled under Sections 3.1 and 3.2 (without interest) upon a proper surrender by such holder of the certificate or certificates representing the shares of Seller Common Stock held by such holder subject to the procedures in Article 4.
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Dissenting Shareholders.
4.1 Each registered STEP Shareholder may exercise Dissent Rights with respect to the STEP Shares held by such registered STEP Shareholder in connection with the Arrangement pursuant to and in the manner set forth in section 191 of the ABCA, as modified by the Interim Order and this Article 4. Dissenting Shareholders shall be deemed to have transferred the STEP Shares held by them and in respect of which Dissent Rights have been validly exercised to the Purchaser free and clear of all Liens as provided in Section 3.1 and if they:
(a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is ultimately entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant tobe paid fair value for their STEP Shares shall: (i) be deemed not to have participated in the transactions in Section 3.1 hereof, and who complies other than the transaction in all respects with, the provisions of Section 1091 of the OGCA 3.1(a); (“Section 1091”ii) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the be paid an amount equal to such fair value by the Purchaser; and (iii) not be entitled to any other payment or consideration, including any payment that would be payable under the Arrangement had such Dissenting Shareholders not exercised their Dissent Rights in respect of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective TimeSTEP Shares; or
(b) are ultimately not entitled, all Southwest Dissenting Shares shall no longer be outstandingfor any reason, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting for their STEP Shares shall be deemed to have been converted participated in the Arrangement, as of the Effective Time, on the same basis as a STEP Shareholder who did not exercise its Dissent Rights.
4.2 The fair value of the STEP Shares for the purposes of Section 4.1(a) shall be determined as of the close of business on the last Business Day before the day on which the Arrangement Resolution is approved by the STEP Shareholders.
4.3 In no event shall the Purchaser or STEP be required to recognize any Dissenting Shareholder as a STEP Shareholder after the Effective Time and the names of such holders shall be removed from the register of STEP Shareholders as at the Effective Time intoTime.
4.4 For greater certainty, in addition to any other restrictions in section 191 of the ABCA, any Person who has voted (including by way of instructing a proxy holder to vote) their STEP Shares in favour of the Arrangement Resolution shall not be entitled to exercise Dissent Rights. A Dissenting Shareholder may only exercise Dissent Rights in respect of all, and shall have becomenot less than all, of its STEP Shares.
4.5 Notwithstanding subsection 191(5) of the ABCA, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but setting forth such registered STEP Shareholder's objection to the Arrangement Resolution must be received in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest shall not, except accordance with the Interim Order by no later than 5:00 p.m. (Calgary time) on the third Business Day immediately prior written consent to the date of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for paymentthe STEP Meeting.
Appears in 1 contract
Samples: Arrangement Agreement
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement To the extent that Section 8.7 of the Declaration is declared by a court of competent jurisdiction to be applicable to the contraryMerger, shares of Southwest Common Stock that are any issued and outstanding immediately prior to the Effective Time and which are Trust Class B Common Shares held by a person, other than any Holder member of the Management Circle (as defined in the Shareholder Rights Agreement dated August 1, 1989, between the Company, The Standard Fire Insurance Company and the other shareholders bound thereby, as amended (the "Shareholder Rights Agreement")) or any employee of the Trust or any subsidiary of the Trust ("Employee Shareholders"), who is entitled shall not have voted to demand adopt this Agreement or consented thereto in writing and who shall have properly demands demanded appraisal of (a "Dissenting Shareholder") for such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of accordance with Section 1091 8.7 of the OGCA Declaration (“Section 1091”"Dissenting Shares") (which Section provides that appraisal rights shall only apply if holders other than members of the “Southwest Dissenting Shareholders”), Management Circle and Employee Shareholders holding at least 2/3 of the total outstanding Trust Class B Common Shares held by such holders have requested such rights) shall not be converted into as described in Section 2.01(b) and (c), unless such holder fails to perfect or be exchangeable for the withdraws or otherwise loses his right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”)appraisal. If, but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At after the Effective Time, all Southwest such Dissenting Shareholder fails to perfect or withdraws or loses his right to appraisal, such Dissenting Shareholder's Trust Class B Common Shares shall no longer be outstanding, shall automatically be canceled and retired considered Dissenting Shares for the purposes of this Agreement and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted into and to have become exchangeable for, at the Effective Time into, and shall have becomeTime, the right to receive Class B Merger Consideration. In determining the Merger Consideration as provided fair value of the Dissenting Shares and in otherwise implementing Section 2.1(c8.7 of the Declaration, Section 262 of the Delaware General Corporation Law ("DGCL") of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)shall apply.
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrarycontrary herein, shares any Company Share for which any Company Shareholder (such Company Shareholder, a “Dissenting Company Shareholder”) (i) has not voted in favor of Southwest Common Stock that are issued the Company Merger or consented to it in writing, or has waived its rights of appraisal and outstanding immediately prior to (ii) has demanded the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant toCompany Shares in accordance with, and who complies has complied in all respects with, NRS 92A.380-390 (collectively, the provisions of Section 1091 of the OGCA (“Section 1091Dissenting Company Shares”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value applicable portion of Transaction Share Consideration pursuant to Section 2.1(d)(vii). From and after the Company Merger Effective Time, (A) the Dissenting Company Shares shall be cancelled and extinguished and shall cease to exist and (B) the Dissenting Company Shareholders shall be entitled only to such Southwest Dissenting Shares in accordance with rights as may be granted to them under NRS 92A.380-390 and shall not be entitled to exercise any of the provisions voting rights or other rights of Section 1091. Notwithstanding a stockholder of the foregoingSecond Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting Company Shareholder effectively withdraws or loses such Holder shall fail appraisal rights (through failure to perfect such appraisal rights or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091otherwise), then the right of Company Shares held by such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Company Shareholder (1) shall cease and such Southwest Dissenting Shares shall no longer be deemed to have be Dissenting Company Shares and (2) shall be treated as if they had been converted automatically at the Company Merger Effective Time into, and shall have become, into the right to receive the Merger applicable portion of the Transaction Share Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.1(d)(vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any dividends other documents or distributions (if anyagreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.6(e). Each Dissenting Company Shareholder who becomes entitled to payment for his, her or its Dissenting Company Shares pursuant to Section 3.1(d).
(b) Southwest the NRS shall receive payment thereof from the Company in accordance with the NRS. The Company shall give Xxxxxxx CBRG and HoldCo prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal of any shares of Southwest Common Stock and any Company Share, attempted withdrawals of such demandsdemands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by the Company, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep CBRG and HoldCo reasonably apprised as to the status and developments related to such matters, and Xxxxxxx CBRG and HoldCo shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to all such demands. Southwest The Company shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of XxxxxxxCBRG and HoldCo (prior to the Closing) or the CBRG Sponsor (after the Closing), voluntarily make any payment or deliver any consideration (including HoldCo Shares) with respect to, or settle, settle or offer or agree to settlesettle any such demands.
(b) Notwithstanding anything to the contrary herein and in accordance with the Cayman Companies Law, any CBRG Share issued and outstanding immediately prior to the CBRG Merger Effective Time for which any CBRG Shareholder (such demand CBRG Shareholder, a “Dissenting CBRG Shareholder”) has validly exercised properly in writing their dissenters’ rights for paymentsuch CBRG Shares in accordance with Section 238 of the Cayman Companies Law, and has otherwise complied in all respects with all of the provisions of the Cayman Companies Law relevant to the exercise and perfection of dissenters’ rights (collectively, the “Dissenting CBRG Shares”) shall not be converted into the right to receive, and the applicable Dissenting CBRG Shareholder shall have no right to receive, the applicable portion of the CBRG Merger Consideration pursuant to Section 2.1(c)(vii) unless and until such Dissenting CBRG Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law. From and after the CBRG Merger Effective Time, (A) the Dissenting CBRG Shares shall no longer be outstanding and shall automatically be cancelled and extinguished by virtue of the CBRG Merger and shall cease to exist and (B) the Dissenting CBRG Shareholders shall be entitled only to such rights as may be granted to them under Section 238 of the Cayman Companies Law and shall not be entitled to exercise any of the voting rights or other rights of a shareholder of the First Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting CBRG Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law, then the CBRG Shares held by such Dissenting CBRG Shareholder (1) shall no longer be deemed to be Dissenting CBRG Shares and (2) shall be treated as if they had been converted automatically at the CBRG Merger Effective Time into the right to receive the applicable portion of the CBRG Merger Consideration pursuant to Section 2.1(c)(vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables described in Section 2.6(e). Each Dissenting CBRG Shareholder who becomes entitled to payment for his, her or its Dissenting CBRG Shares pursuant to the Cayman Companies Law shall receive payment thereof from CBRG in accordance with the Cayman Companies Law. CBRG shall give HxxxXx prompt notice of any written demands for dissenters’ rights of any CBRG Share, attempted withdrawals of such demands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by CBRG, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep HoldCo reasonably apprised as to the status and developments related to such matters, and HoldCo shall have the opportunity to participate in all negotiations and proceedings with respect to all such demands. CBRG shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of HoldCo (prior to the Closing) or the CBRG Sponsor (after the Closing), make any payment or deliver any consideration (including HoldCo Shares) with respect to, settle or offer or agree to settle any such demands.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common CFB Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common CFB Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 Subchapter XI of the OGCA DC Code (“Section 1091Subchapter XI”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 Merger Consideration (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091Subchapter XI. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares Shareholder shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091Subchapter XI. Notwithstanding the foregoing, if any such Holder Dissenting Shareholder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091Subchapter XI, or a court of competent jurisdiction shall determine that such Holder holder is not entitled to the relief provided by Section 1091Subchapter XI, then such shares of CFB Stock shall cease to constitute Dissenting Shares and the right of such Holder holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Subchapter XI shall be forfeited and cease and and, if such Southwest forfeiture shall occur following the Effective Time, each such formerly Dissenting Shares shall thereafter be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c1.5(b) of this Agreementand Section 1.6, as applicable, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 share payment and any dividends or distributions (if any) pursuant to Section 3.1(d1.5(b).
(b) Southwest CFB shall give Xxxxxxx BYFC prompt written notice (but and in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common CFB Stock and any withdrawals of such demands, and Xxxxxxx BYFC shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest CFB shall not, except with the prior written consent of XxxxxxxBYFC, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for paymentpayment or waive any failure by any holder of CFB Common Stock to timely deliver a written demand for appraisal or the taking of any other action by any such holder as may be necessary to perfect appraisal rights under the Subchapter XI, or agree to do any of the foregoing.
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Dissenting Shareholders. (a) Notwithstanding anything in any provision of this Agreement to the contrary, shares each share of Southwest Common Stock DecisionPoint Systems common stock that are is issued and outstanding immediately prior to the Effective Time Closing and which are that is held by any Holder a shareholder of DecisionPoint Systems who is entitled to demand has not voted in favor of this Agreement or consented thereto in writing and properly demands appraisal who shall have otherwise perfected such holder’s dissenters’ rights in accordance with and as contemplated by Sections 1300-1313 of the CGCL(each such shares of Southwest Common Stock pursuant toshareholder, a “Dissenting Stockholder”, and who complies in all respects witheach share of DecisionPoint Systems common stock held by such shareholder, the provisions of Section 1091 of the OGCA (a “Section 1091Dissenting Share”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”)canceled, extinguished and converted, but instead such Holder shall be entitled to payment receive from the Surviving Corporation the value of the fair value shares of DecisionPoint Systems common stock held by such Southwest Dissenting Shares in accordance with Stockholder as determined pursuant to Sections 1300-1313 of the provisions of Section 1091. At the Effective TimeCGCL; provided, all Southwest however, that if such Dissenting Shares shall no longer be outstandingStockholder fails to perfect, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of or effectively withdraws or loses such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the holder’s right to appraisal of and payment for such holder’s shares under Section 1091Sections 1300-1313 of the CGCL, or a court each share of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right DecisionPoint Systems common stock of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Stockholder shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at into and to have become exchangeable for, as of the Effective Time into, and shall have becomeClosing, the right to receive shares of DecisionPoint common stock, and such share of DecisionPoint Systems common stock shall no longer be a Dissenting Share. In such event, DecisionPoint Systems shall deliver the Merger Consideration as provided in Section 2.1(cnumber of shares of DecisionPoint common Stock to which such shareholder is entitled (without interest) upon surrender by such shareholder of this Agreement, any cash in lieu the certificate or certificates representing the shares of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)DecisionPoint Systems common stock held by such shareholder.
(b) Southwest DecisionPoint Systems shall give Xxxxxxx prompt provide notice in accordance with the CGCL to each shareholder that is entitled to appraisal rights; provided that if the DecisionPoint Systems shareholders have approved the Merger by written consent pursuant to Sections 1300-1313 of the CGCL, DecisionPoint Systems shall provide notice (but promptly, and in any event within 48 hoursfive (5) business days, after such stockholder approval is obtained. DecisionPoint Systems shall give prompt notice to Xxxxxxx DecisionPoint of any demands received by DecisionPoint Systems for appraisal of any shares of Southwest Common Stock DecisionPoint Systems common stock. The Surviving Corporation shall promptly pay to any Dissenting Stockholder any and any withdrawals of such demands, all amounts due and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect owing to such demands. Southwest shall notholder as a result of any settlement of, except with or determination by the prior written consent courts of Xxxxxxx, voluntarily make any payment the State of California with respect to, or settle, or offer or agree to settle, any such demand for paymentdemands.
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Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares Shares of Southwest Company Common Stock that are issued and outstanding immediately held by Company Shareholders who have, prior to the Effective Time and which are held by any Holder who is entitled to taking of the vote of the Company Shareholders on the Merger, filed with the Company written demand and properly demands for the appraisal of such their shares of Southwest Company Common Stock pursuant to, and who complies in all respects with, accordance with the applicable provisions of Section 1091 of the OGCA (“Section 1091”) CGCL, (the “Southwest "Dissenting Shareholders”), ") shall not be ----------------------- deemed to be converted into Parent Common Stock at the Conversion Ratio (such nonconverting shares, the "Dissenting Shares") unless, and until such time as, ----------------- such shareholders shall have withdrawn, failed to perfect, or shall have effectively lost, their right to appraisal of or payment for their shares of Company Common Stock under the CGCL, at which time such shares shall be exchangeable for converted into the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration Parent Common Stock as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest 3.2. The Company shall give Xxxxxxx Parent prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands demand received by the Company for appraisal of any payment for shares of Southwest Company Common Stock and any withdrawals of such demandsfrom Dissenting Shareholders, and Xxxxxxx Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demandsdemand. Southwest shall The Company agrees that it will not, except with the prior written consent of XxxxxxxParent, voluntarily make any payment with respect to, or settle, settle or offer or agree to settle, any such demand for payment. Each Dissenting Shareholder who becomes entitled, pursuant to the provisions of the CGCL, to the payment of the value of his, her or its Dissenting Shares shall receive payment therefor from Parent or Subsidiary (but only after the value thereof shall have been agreed upon or finally determined pursuant to the terms of this Agreement and as provided in the CGCL). In the event that any Dissenting Shareholder shall have withdrawn, failed to perfect, or shall have effectively lost, his right to appraisal of and payment for his, her or its Dissenting Shares, Parent shall issue and deliver, upon surrender by such Dissenting Shareholder of his, her or its certificate or certificates representing shares of Company Common Stock, the shares of Parent Common Stock of which such Dissenting Shareholder may then be entitled under and pursuant to this Agreement minus the Escrow Securities attributable to such Dissenting Shareholder, which shall be held by the Escrow Agent pursuant to the Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (C Cor Net Corp)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrarycontrary herein, shares any Company Share for which any Company Shareholder (such Company Shareholder, a “Dissenting Company Shareholder”) (i) has not voted in favor of Southwest Common Stock that are issued the Company Merger or consented to it in writing, or has waived its rights of appraisal and outstanding immediately prior to (ii) has demanded the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant toCompany Shares in accordance with, and who complies has complied in all respects with, the provisions of Section 1091 262 of the OGCA DGCL (collectively, the “Section 1091Dissenting Company Shares”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value applicable portion of Adjusted Transaction Share Consideration pursuant to Section 2.1(d)(vii). From and after the Company Merger Effective Time, (A) the Dissenting Company Shares shall be cancelled and extinguished and shall cease to exist and (B) the Dissenting Company Shareholders shall be entitled only to such Southwest Dissenting Shares in accordance with rights as may be granted to them under Section 262 of the provisions DGCL and shall not be entitled to exercise any of Section 1091. Notwithstanding the foregoingvoting rights or other rights of a stockholder of the Second Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting Company Shareholder effectively withdraws or loses such Holder shall fail appraisal rights (through failure to perfect such appraisal rights or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091otherwise), then the right of Company Shares held by such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Company Shareholder (1) shall cease and such Southwest Dissenting Shares shall no longer be deemed to have be Dissenting Company Shares and (2) shall be treated as if they had been converted automatically at the Company Merger Effective Time into, and shall have become, into the right to receive the Merger applicable portion of the Adjusted Transaction Share Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.1(d)(vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any dividends other documents or distributions (if anyagreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.5(e). Each Dissenting Company Shareholder who becomes entitled to payment for his, her or its Dissenting Company Shares pursuant to Section 3.1(d).
(b) Southwest the DGCL shall receive payment thereof from the Company in accordance with the DGCL. The Company shall give Xxxxxxx ARYA and HoldCo prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal of any shares of Southwest Common Stock and any Company Share, attempted withdrawals of such demandsdemands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by the Company, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep ARYA and HoldCo reasonably apprised as to the status and developments related to such matters, and Xxxxxxx ARYA and HoldCo shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to all such demands. Southwest The Company shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of XxxxxxxARYA and HoldCo (prior to the Closing) or the ARYA Sponsor (after the Closing), voluntarily make any payment or deliver any consideration (including HoldCo Shares) with respect to, or settle, settle or offer or agree to settlesettle any such demands.
(b) Notwithstanding anything to the contrary herein and in accordance with the Cayman Companies Law, any ARYA Share issued and outstanding immediately prior to the ARYA Merger Effective Time for which any ARYA Shareholder (such demand ARYA Shareholder, a “Dissenting ARYA Shareholder”) has validly exercised properly in writing their dissenters’ rights for payment.such ARYA Shares in accordance with Section 238 of the Cayman Companies Law, and has otherwise complied in all respects with all of the provisions of the Cayman Companies Law relevant to the exercise and perfection of dissenters’ rights (collectively, the “Dissenting ARYA Shares”) shall not be converted into the right to receive, and the applicable Dissenting ARYA Shareholder shall have no right to receive, the applicable portion of the ARYA Merger Consideration pursuant to Section 2.1(c)(vii) unless and until such Dissenting ARYA Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law. From and after the ARYA Merger Effective Time, (A) the Dissenting ARYA Shares shall no longer be outstanding and shall automatically be cancelled and extinguished by virtue of the ARYA Merger and shall cease to exist and (B) the Dissenting ARYA Shareholders shall be entitled only to such rights as may be granted to them under Section 238 of the Cayman Companies Law and shall not be entitled to exercise any of the voting rights or other rights of a shareholder of the First Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting ARYA Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law, then the ARYA Shares held by such Dissenting ARYA Shareholder (1) shall no longer be deemed to be Dissenting ARYA Shares and (2) shall be treated as if they had been converted automatically at the ARYA
Appears in 1 contract
Samples: Business Combination Agreement (Adagio Medical Holdings, Inc.)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest PLFC Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest PLFC Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 Subchapter D of the OGCA PBCL (“Section 1091Subchapter D”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE Article 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Subchapter D. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Subchapter D. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091Subchapter D, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091Subchapter D, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Subchapter D shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d3.2(d).
(b) Southwest PLFC shall give Xxxxxxx WSFS prompt written notice (but in any event within 48 24 hours) to Xxxxxxx WSFS of any demands for appraisal of any shares of Southwest PLFC Common Stock and any withdrawals of such demands, and Xxxxxxx WSFS shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest PLFC shall not, except with the prior written consent of XxxxxxxWSFS, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
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Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
(c) Holders of Xxxxxxx Common Stock immediately prior to the Effective Time and which are held by a shareholder who is entitled to demand and properly demands appraisal of such shares of Xxxxxxx Common Stock (the “Xxxxxxx Dissenting Shares”) pursuant to, and who complies in all respects with, the provisions of Subchapter 13 of the ABCA (“Subchapter 13”) (the “Xxxxxxx Dissenting Shareholders”), shall be entitled to payment of the fair value of such Xxxxxxx Dissenting Shares in accordance with the provisions of Subchapter 13. At the Effective Time, all Xxxxxxx Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each holder of Xxxxxxx Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Xxxxxxx Dissenting Shares in accordance with the provisions of Subchapter 13. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Subchapter 13, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Subchapter 13, then the right of such holder to be paid the fair value of such holder’s Xxxxxxx Dissenting Shares under Subchapter 13 shall cease and such Xxxxxxx Dissenting Shares shall revert to shares of Xxxxxxx Common Stock.
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Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, Any holder of shares of Southwest Common Stock that are issued Evant capital stock who perfects such holder's dissenters' rights in accordance with and outstanding immediately prior to as contemplated by Sections 1300-1313 of the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of CGCL (such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right referred to receive any of the consideration herein as specified in ARTICLE 2 (the “Southwest "Dissenting Shares”), but instead such Holder ") shall be entitled to payment of receive from the fair Surviving Corporation the value of such Southwest Dissenting Shares shares in accordance cash as determined pursuant to Sections 1300-1313 of the CGCL; provided, that no such payment shall be made to any dissenting Shareholder (as defined in Section 4.3) unless and until such dissenting Shareholder has complied with the applicable provisions of Section 1091the CGCL. At In the event that after the Effective TimeTime a dissenting Shareholder fails to perfect, all Southwest Dissenting Shares shall no longer be outstandingor effectively withdraws or loses, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the holder's right to appraisal under Section 1091of and payment for such holder's shares, or a court each share of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right Evant capital stock of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Shareholder shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at into and to have become exchangeable for, as of the Effective Time into, and shall have becomeTime, the right to receive the Relevant Per Share Merger Consideration as provided in Section 2.1(c) for such share and such share of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Evant capital stock shall no longer be a Dissenting Share.
(b) Southwest Evant shall provide notice in accordance with the CGCL to each shareholder that is entitled to appraisal rights. Evant shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx Buyer and the Shareholder Representative of any demands received by Evant for appraisal of any shares of Southwest Common Stock and Evant or any withdrawals of such demands, and Xxxxxxx . The Shareholder Representative shall have the right to participate in and direct control all negotiations and proceedings with respect to such demands, it being understood that the Buyer shall be entitled to participate in such negotiations and proceedings and approve any settlement of any demand. Southwest Subject to the provisions of Article VIII applicable thereto, Buyer shall notpromptly pay to any dissenting Shareholder any and all amounts due and owing to such holder as a result of any settlement of, except with or determination by a Superior Court in the prior written consent State of Xxxxxxx, voluntarily make any payment California with respect to, or settle, or offer or agree to settle, any such demand for paymentdemands. Evant shall comply with the notice provisions of Sections 1300-1313 of the CGCL.
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Dissenting Shareholders. 5.1 Notwithstanding §3.1 hereof, holders of XX0000000 Shares may exercise rights of dissent (the “Dissent Right”) in connection with the Arrangement pursuant to the Interim Order and in the manner set forth in sections 237 – 247 of the BCBCA (collectively, the “Dissent Procedures”).
5.2 XX0000000 Shareholders who duly exercise Dissent Rights with respect to their XX0000000 Shares (“Dissenting Shares”) and who:
(a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is ultimately entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest for their Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares Shares, shall be deemed to have been converted at transferred their Dissenting Shares to XX0000000 for cancellation immediately before the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).Date; or
(b) Southwest for any reason are ultimately not entitled to be paid fair value for their Dissenting Shares, shall give Xxxxxxx prompt written notice (but be deemed to have participated in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock the Arrangement on the same basis as a non- dissenting XX0000000 Shareholder and any withdrawals of such demandsshall receive New Shares, Acqua Shares, Breosla Shares, Forbairt Shares, Laidineach Shares, Saibhir Shares, and Xxxxxxx Teaghlach Shares on the same basis as every other non-dissenting XX0000000 Shareholder, and in no case shall have XX0000000 be required to recognize such person as holding XX0000000 Shares on or after the right Effective Date.
5.3 If a XX0000000 Shareholder exercises the Dissent Right, XX0000000 shall on the Effective Date set aside and not distribute that portion of the Distributed Subsidiary Shares that is attributable to participate in and direct all negotiations and proceedings with respect the XX0000000 Shares for which the Dissent Right has been exercised. If the dissenting XX0000000 Shareholder is ultimately not entitled to be paid for their Dissenting Shares, XX0000000 shall distribute to such demandsXX0000000 Shareholder his, her or its pro-rata portion of the Distributed Subsidiary Shares. Southwest shall not, except If a XX0000000 Shareholder duly complies with the prior written consent Dissent Procedures and is ultimately entitled to be paid for their Dissenting Shares, then XX0000000 shall retain the portion of Xxxxxxxthe Distributed Subsidiary Shares attributable to such XX0000000 Shareholder (the “Non-Distributed Subsidiary Shares”), voluntarily make any payment and the Non-Distributed Subsidiary Shares shall be dealt with respect to, or settle, or offer or agree to settle, any such demand for paymentas determined by the board of directors of XX0000000 in its absolute discretion.
Appears in 1 contract
Samples: Arrangement Agreement
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Target Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Target Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 Sections 00-00-000 through 00-00-000 of the OGCA (“Section 1091”) TBCA (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091Sections 00-00-000 through 00-00-000 of the TBCA. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091Sections 00-00-000 through 00-00-000 of the TBCA. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091Sections 00-00-000 through 00-00-000 of the TBCA, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091Sections 00-00-000 through 00-00-000 of the TBCA, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Sections 00-00-000 through 00-00-000 of the TBCA shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.5 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest Target shall give Xxxxxxx Buyer prompt written notice (but in any event within 48 hourstwo Business Days) to Xxxxxxx Buyer of any demands for appraisal of any shares of Southwest Target Common Stock and any withdrawals of such demands, and Xxxxxxx Buyer shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest Target shall not, except with the prior written consent of XxxxxxxBuyer, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Xxxxxxx Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Xxxxxxx Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 351.455 of the OGCA GBCL (“Section 1091”) (the “Southwest Dissenting Shareholders351.455”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Xxxxxxx Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Xxxxxxx Dissenting Shares in accordance with the provisions of Section 1091351.455. At the Effective Time, all Southwest Xxxxxxx Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Xxxxxxx Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Xxxxxxx Dissenting Shares in accordance with the provisions of Section 1091351.455. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091351.455, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091351.455, then the right of such Holder to be paid the fair value of such Holder’s Southwest Xxxxxxx Dissenting Shares under Section 1091 351.455 shall cease and such Southwest Xxxxxxx Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Consideration.
(b) Southwest Xxxxxxx shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Xxxxxxx Common Stock and any withdrawals of such demands, and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest Xxxxxxx shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
Appears in 1 contract
Dissenting Shareholders. (a) Notwithstanding anything in any provision of this Agreement to the contrary, shares of Southwest Lamcor Common Stock ("Shares") that are issued and outstanding immediately prior to the Effective Time and which are held by any Holder Shareholders who is entitled to demand and properly demands appraisal shall have not voted in favor of such shares of Southwest Common Stock pursuant to, the Merger or consented thereto in writing and who complies shall have demanded properly in all respects withwriting the fair value for such Shares in accordance with Section 302A.473 of the MBCA (collectively, the provisions of Section 1091 of the OGCA (“Section 1091”"Dissenting Shares") (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for represent the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder Merger Consideration. Such Shareholders shall be entitled to receive payment of the fair value of such Southwest Dissenting Shares held by such Shareholders (with interest if required by the MBCA) in accordance with the provisions of such Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto302A.473, except the right to receive the fair value of such Southwest that each Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder Share held by Shareholders who shall fail have failed to perfect or otherwise who effectively shall waive, withdraw have withdrawn or lose the right lost their rights to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under such Section 1091 302A.473 shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at into and to have become exchangeable for, as of the Effective Time into, and shall have become, the right to receive the Merger Consideration as Cash Payment, without any interest thereon, upon surrender, in the manner provided in Section 2.1(c) 4.1, of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends the certificate or distributions (if any) pursuant to Section 3.1(d)certificates that formerly evidenced such Dissenting Shares.
(b) Southwest Lamcor shall give Xxxxxxx Buyer (i) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal fair value of Dissenting Shares received by Lamcor and withdrawals of any shares of Southwest Common Stock such demands and any withdrawals of such demands, and Xxxxxxx shall have (ii) the right opportunity to participate in and direct all negotiations and proceedings with respect to each such demandsdemand. Southwest Lamcor shall not, except with the prior written consent of XxxxxxxBuyer, voluntarily make any payment (except to the extent that any such payment is made pursuant to a final, non-appealable court order) with respect to, or settle, to any demands for the fair value of Dissenting Shares or offer to settle or agree to settle, settle any such demand for paymentdemands.
(c) Payments to the holders of Dissenting Shares pursuant to Section 302A.473, and any costs or expenses in connection therewith, which exceed the amount of the Merger Consideration payable with respect to such Shares, shall not be paid out of the Escrowed Funds.
Appears in 1 contract
Samples: Merger Agreement (Lamcor Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are issued and outstanding immediately no Person who has prior to the Effective Time and which are perfected a demand for appraisal rights pursuant to Section 351.455 of the MRS (a “Dissenting Shareholder”) with respect to any shares of Xxxxx Stock held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 of the OGCA Dissenting Shareholder (“Section 1091”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder ) shall be entitled to receive the Per Share Merger Consideration with respect to such Dissenting Shares unless and until such Dissenting Shareholder shall have effectively withdrawn (in accordance with Section 351.455 of the MRS) or lost such Person’s right to appraisal under the MRS with respect to such Dissenting Shares. Unless and until a Dissenting Shareholder shall have effectively so withdrawn or lost such Dissenting Shareholder’s right to appraisal under the MRS with respect to Dissenting Shares, such Dissenting Shareholder shall be entitled to receive only payment of the fair value of such Southwest Dissenting Shares as required by Section 351.455 of the MRS (including any interest thereon and related costs, if any, required to be paid in accordance with Section 351.455 of the provisions of Section 1091MRS). At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest Xxxxx shall give Xxxxxxx EQBK (A) prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal payment of any shares of Southwest Common Stock and any fair value, attempted withdrawals of such demands, and Xxxxxxx shall have any other instruments served pursuant to applicable Law that are received by Xxxxx prior to the right Effective Time pursuant to Section 351.455 of the MRS relating to Xxxxx shareholders’ appraisal rights and (B) the opportunity to participate in and direct control all negotiations and proceedings with respect to such demandsdemands for payment of fair value by Xxxxx shareholders under Section 351.455 of the XXX. Southwest Xxxxx shall not, except with the prior written consent of XxxxxxxEQBK (which shall not be unreasonably withheld, voluntarily conditioned or delayed), make any payment with respect to, or settle, or offer or agree to settle, any such demand dissent or demands for paymentpayment of fair value, offer to settle or settle any such demands. Any payment required to be made with respect to the Dissenting Shares shall be made by EQBK. From and after the Effective Time, Dissenting Shares shall not be entitled to vote for any purpose or be entitled to the payment of dividends or other distributions (except dividends or other distributions payable by Xxxxx to shareholders of record prior to the Effective Time).
(b) If any shareholder who holds Dissenting Shares effectively withdraws or loses (through failure to perfect or otherwise) such shareholder’s right to appraisal under the KGCC, then, as of the later of the Effective Time and the occurrence of such effective withdrawal or loss, such shareholder’s shares of Common Stock shall no longer be Dissenting Shares and shall be automatically converted into the right to receive the Per Share Merger Consideration, without interest, as set forth in this Article I, it being understood that surrender of the Certificate representing such Dissenting Shares shall be a prerequisite to the receipt of payment in respect of any Dissenting Shares represented thereby.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Equity Bancshares Inc)
Dissenting Shareholders. The Company shall use its reasonable best efforts (awhich shall not require the payment of any additional consideration) Notwithstanding anything in this Agreement to cause the contrary, shares holders of Southwest Common Stock that are one hundred percent (100%) of the issued and outstanding immediately prior Ordinary Shares, Company Debentures and Company Purchase Rights who did not execute this Agreement as a Seller on the date hereof to become signatories hereto and therefore "Sellers" hereunder. In the Effective Time event that on the date that is fourteen (14) days after the Mailing Date the Sellers hold less than one hundred percent (100%) and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, the provisions of Section 1091 more than ninety percent (90%) of the OGCA issued and outstanding Ordinary Shares, then upon the request of Purchaser the Company shall forward a notice to each Other Shareholder who did not execute this Agreement as a Seller (“Section 1091”) (the “Southwest a "Dissenting Shareholders”Holder"), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest informing such Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Purchaser's intention to require such Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid sell its Ordinary Shares to Purchaser, on the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease same terms and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration conditions as provided contained in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions 341 of the Companies Law (if any) the "Section 341 Notice"). In the event that within one month of receipt of the Section 341 Notice such Dissenting Holder has not applied to a court pursuant to Section 3.1(d341(b) of the Companies Law (or, if a court, after such application, has found in favor of Purchaser).
, then Purchaser shall forward to the Sellers' Representative the consideration pursuant to this Agreement for the Dissenting Holder's Ordinary Shares (b) Southwest which consideration shall give Xxxxxxx prompt written notice (but be subject to the legends described in any event within 48 hours) to Xxxxxxx of any demands Section 1.11, the transfer restrictions described in Section 1.12, the provision for appraisal of any shares of Southwest Common Stock Escrow Shares and any withdrawals of such demandsindemnification described in Sections 1.1, 1.2 and Article VIII, and Xxxxxxx the other terms and conditions as are contained in this Agreement) and the Company shall have immediately register Purchaser in the right Company's shareholders register as the holder of those Ordinary Shares held by such Dissenting Holder. It is hereby agreed that in the event a Dissenting Holder files an application with a court pursuant to participate in Section 341(b) of the Companies Law, the Sellers shall severally and direct all negotiations and proceedings not jointly indemnify Purchaser with respect to all costs and expenses incurred as a result of such demandsapplication and shall do all such things as shall be reasonably necessary in order for Purchaser to successfully defend such application. Southwest The Company shall notalso use its reasonable best efforts (which shall not require the payment of any additional consideration) to cause each Dissenting Holder to deliver to Purchaser a letter containing representations and warranties in form and substance similar to the representations and warranties set forth in Article III hereof which, except in the opinion of counsel to Purchaser, would satisfy the requirements of the Securities Act and any regulations promulgated thereunder in connection with the prior written consent issuance of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree the Purchaser Shares to settle, any such demand for paymenteach Dissenting Holder.
Appears in 1 contract
Samples: Share Purchase Agreement (Com21 Inc)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrarycontrary herein, shares any Company Share for which any Company Shareholder (such Company Shareholder, a “Dissenting Company Shareholder”) (i) has not voted in favor of Southwest Common Stock that are issued the Company Merger or consented to it in writing, or has waived its rights of appraisal and outstanding immediately prior to (ii) has demanded the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal of such shares of Southwest Common Stock pursuant toCompany Shares in accordance with, and who complies has complied in all respects with, the provisions of Section 1091 262 of the OGCA DGCL (collectively, the “Section 1091Dissenting Company Shares”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. At the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value applicable portion of Adjusted Transaction Share Consideration pursuant to Section 2.1(d)(vii). From and after the Company Merger Effective Time, (A) the Dissenting Company Shares shall be cancelled and extinguished and shall cease to exist and (B) the Dissenting Company Shareholders shall be entitled only to such Southwest Dissenting Shares in accordance with rights as may be granted to them under Section 262 of the provisions DGCL and shall not be entitled to exercise any of Section 1091. Notwithstanding the foregoingvoting rights or other rights of a stockholder of the Second Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting Company Shareholder effectively withdraws or loses such Holder shall fail appraisal rights (through failure to perfect such appraisal rights or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091otherwise), then the right of Company Shares held by such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Company Shareholder (1) shall cease and such Southwest Dissenting Shares shall no longer be deemed to have be Dissenting Company Shares and (2) shall be treated as if they had been converted automatically at the Company Merger Effective Time into, and shall have become, into the right to receive the Merger applicable portion of the Adjusted Transaction Share Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 2.1(d)(vii) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any dividends other documents or distributions (if anyagreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.5(e). Each Dissenting Company Shareholder who becomes entitled to payment for his, her or its Dissenting Company Shares pursuant to Section 3.1(d).
(b) Southwest the DGCL shall receive payment thereof from the Company in accordance with the DGCL. The Company shall give Xxxxxxx XXXX and XxxxXx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any written demands for appraisal of any shares of Southwest Common Stock and any Company Share, attempted withdrawals of such demandsdemands and any other material developments related to any such demands and provide copies of all documents, instruments or other communications received by the Company, any of its Subsidiaries or any of their respective Representatives related thereto and shall otherwise keep ARYA and HoldCo reasonably apprised as to the status and developments related to such matters, and Xxxxxxx ARYA and HoldCo shall have the right opportunity to participate in and direct all negotiations and proceedings with respect to all such demands. Southwest The Company shall not, except with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of XxxxxxxARYA and HoldCo (prior to the Closing) or the ARYA Sponsor (after the Closing), voluntarily make any payment or deliver any consideration (including HoldCo Shares) with respect to, or settle, settle or offer or agree to settlesettle any such demands.
(b) Notwithstanding anything to the contrary herein and in accordance with the Cayman Companies Law, any XXXX Xxxxx issued and outstanding immediately prior to the ARYA Merger Effective Time for which any ARYA Shareholder (such demand ARYA Shareholder, a “Dissenting ARYA Shareholder”) has validly exercised properly in writing their dissenters’ rights for payment.such ARYA Shares in accordance with Section 238 of the Cayman Companies Law, and has otherwise complied in all respects with all of the provisions of the Cayman Companies Law relevant to the exercise and perfection of dissenters’ rights (collectively, the “Dissenting ARYA Shares”) shall not be converted into the right to receive, and the applicable Dissenting ARYA Shareholder shall have no right to receive, the applicable portion of the ARYA Merger Consideration pursuant to Section 2.1(c)(vii) unless and until such Dissenting ARYA Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law. From and after the ARYA Merger Effective Time, (A) the Dissenting ARYA Shares shall no longer be outstanding and shall automatically be cancelled and extinguished by virtue of the ARYA Merger and shall cease to exist and (B) the Dissenting ARYA Shareholders shall be entitled only to such rights as may be granted to them under Section 238 of the Cayman Companies Law and shall not be entitled to exercise any of the voting rights or other rights of a shareholder of the First Surviving Company or any of its Affiliates (including HoldCo); provided, however, that if any Dissenting ARYA Shareholder effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise) under the Cayman Companies Law, then the ARYA Shares held by such Dissenting ARYA Shareholder (1) shall no longer be deemed to be Dissenting ARYA Shares and (2) shall be treated as if they had been converted automatically at the ARYA
Appears in 1 contract
Samples: Business Combination Agreement (ARYA Sciences Acquisition Corp IV)
Dissenting Shareholders. (a) Notwithstanding anything in this Agreement to the contrary, shares of Southwest Common Stock that are 2.6.1 Shares issued and outstanding immediately prior to the Effective Time and which Completion Date that are held by any Holder holder who has, either prior to or during the EGM, objected in writing, or objected orally (which objection has been recorded by HMI), to the Transaction, and waived its voting right and which is entitled to demand and properly demands appraisal HMI to buy back Shares of such shares of Southwest Common Stock pursuant to, and who complies in all respects with, holder at the provisions of Section 1091 of the OGCA (“Section 1091”) fair market price (the “Southwest "Appraisal") pursuant to and in compliance with the M&A Act and the Company Act (such Shares, "Dissenting Shareholders”Shares" and the holder of Dissenting Shares, a "Dissenting Shareholder"), shall not be converted into or be exchangeable for have the right to receive any portion of the consideration as specified in ARTICLE 2 (Consideration, unless and until such Dissenting Shareholder shall have failed to perfect, or, to the “Southwest extent permitted by applicable Law, until such holder shall have effectively withdrawn or lost, such holder's right to Appraisal under applicable Law. Dissenting Shares”), but instead such Holder Shares shall be entitled to payment of the fair value of such Southwest Dissenting Shares treated in accordance with the provisions of Section 1091. At M&A Act and the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091, or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration as provided in Section 2.1(c) of this Agreement, any cash in lieu of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)Company Act.
(b) Southwest 2.6.2 Immediately after the EGM, HMI shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx promptly notify ASML of any demands for appraisal Appraisal of any shares of Southwest Common Stock and any Shares, attempted withdrawals of such demandsnotices or demands and any other instruments received by HMI relating to rights to Appraisal, and Xxxxxxx ASML shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Southwest .
2.6.3 Prior to the Completion Date, HMI shall not, except with without the prior written consent of XxxxxxxASML (which consent shall not be unreasonably withheld or delayed), voluntarily make any payment with respect to, settle or offer to settle, or approve any withdrawal of any such demands; provided, however, that HMI shall have the right to make any payment with respect to, settle or offer or agree to settle, or approve any withdrawal of any such demand demands, in each case at a per Share price up to but not more than the Consideration.
2.6.4 In case HMI will have to make any payments to Dissenting Shareholders, the Parties agree that the provisions of Schedule 7 (Funding of payment for paymentDissenting Shares) shall apply.
2.6.5 The consummation of the Transaction shall take place on the Completion Date irrespective of whether (i) HMI and any Dissenting Shareholder have reached an agreement on the buy-back of the Dissenting Shares, (ii) there is any on-going legal proceeding between HMI and any Dissenting Shareholder related to buy-back of Dissenting Shares, and (iii) HMI has yet to buy back any and all Dissenting Shares. 3 COMPLETION CONDITIONS Completion is conditional upon satisfaction or waiver of the following Completion Conditions:
3.1 All obligatory notifications and filings with the Competition Authorities in connection with the Transaction as listed in Schedule 2 (Merger Clearance Filings) (the "Merger Clearance Filings") shall have been made and each such Competition Authority, to the extent required before Completion, shall have:
(a) given the approvals, consents or clearances required under relevant applicable Law for the completion of the Transaction;
(b) rendered a decision that no approval, consent or clearance is required under relevant applicable Law for the completion of the Transaction;
(c) failed to render a decision within the applicable waiting period under relevant applicable Law and such failure is considered under such Law to be a grant of all requisite consents or clearances under such Law; or
(d) referred the Transaction or any part thereof to another Competition Authority in accordance with relevant applicable Law and one of the requirements listed in items (a) through (c) above has been fulfilled in respect of such other Competition Authority.
3.2 HMI shall have convened an extraordinary shareholders meeting at which a resolution will have been duly passed by the holders representing at least two-thirds of the Shares to approve the Transaction.
3.3 All notifications, filings and applications with the Governmental Authorities as set out in Schedule 3 (Taiwan Regulatory Approvals) (the "Taiwan Regulatory Approvals") shall have been made in the form as required by Law and each such Governmental Authority, to the extent required by Law before Completion, shall have:
(a) given the approvals, consents or clearances required under applicable Law for the completion of the Transaction;
(b) rendered a decision that no approval, consent or clearance is required under applicable Law for the completion of the Transaction; or
(c) failed to render a decision within the applicable waiting period under applicable Law and such failure is considered under such Law to be a grant of all requisite approvals, consents or clearances under such Law.
3.4 Either:
(a) the Committee on Foreign Investment in the United States ("CFIUS") shall have provided notice to the Parties that CFIUS has determined that (i) the Transaction is not a covered transaction and not subject to review under Section 721 of the Defense Production Action of 1950, as amended ("Section 721") or (ii) there are no unresolved national security concerns with respect to the Transaction, and that action under Section 721 is concluded with respect to the Transaction; or
(b) following an investigation, the President of the United States shall have announced a decision not to take any action to suspend or prohibit consummation of the Transaction under Section 721 or the applicable time period for the President to take such action shall have expired; (the "CFIUS Approval").
3.5 There shall not have been any material breach by HMI of any of its obligations, covenants and undertakings set out in Clause 6.
3.6 None of the ASML Warranties shall have been found to be, or no event occurring or matter arising which renders any of the ASML Warranties to be, untrue or inaccurate in any material respect (except for such ASML Warranties that contain an express materiality qualification, which shall not be untrue or inaccurate in all respects) on and as at the Signing Date and as at Completion, unless expressly made as of a specified date, then only as of such specified date.
3.7 None of the HMI Warranties set out in Paragraph 7 (Intellectual Property) of Schedule 5 (HMI Warranties) shall have been found, or no event occurring or matter arising which renders any of the HMI Warranties set out in Paragraph 7 (Intellectual Property) of Schedule 5 (HMI Warranties) to be, untrue or inaccurate to the extent that it has or will have a Material Adverse Effect on the HMI Group, and none of all other HMI Warranties shall have been found to be, or no event occurring or matter arising which renders any such other HMI Warranties being, untrue or inaccurate in any material respect (except for such that contain an express materiality qualification, which shall not be untrue or inaccurate in all respects), on and as at the Signing Date and as at Completion, unless expressly made as of a specified date, then only as of such specified date.
3.8 No event or circumstance shall have occurred between the date of this Agreement and Completion which has or will have a Material Adverse Effect on the HMI Group.
3.9 No event or circumstance shall have occurred between the date of this Agreement and Completion which has or will have a Material Adverse Effect on the ASML Group.
3.10 No restraining Governmental Order or permanent injunction or other Governmental Order preventing Completion (other than one issued by or at the request of a Competition Authority which shall be complied with pursuant to Clause 4.2.5) shall be in effect immediately prior to Completion.
Appears in 1 contract
Samples: Share Swap Agreement
Dissenting Shareholders. (a) Notwithstanding anything Any issued and outstanding shares of capital stock held by a stockholder of the Company who shall not have voted in this Agreement favor of the Merger nor consented thereto in writing and who shall have properly demanded, in writing, appraisal for such shares in accordance with Section 262 of the DGCL and who objects to the contraryMerger and complies with all of the provisions of the DGCL concerning the right of such person to dissent from the Merger and demand appraisal of such shares (a "Dissenting Stockholder") shall not be converted into the right to receive any portion of the Merger Consideration (as defined below), but shall, from and after the Effective Time, represent only the right to receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the DGCL; provided, however, shares of Southwest Common Stock that are issued and stock outstanding immediately prior to the Effective Time and which are held by any Holder a Dissenting Stockholder who is entitled shall, after the Effective Time, effectively withdraw his, her or its demand for appraisal or lose his, her or its right of appraisal, in either case pursuant to demand and properly demands appraisal the DGCL, of such shares, shall, if such shares are shares of Southwest Common Stock pursuant toSeries A Preferred Stock, and who complies in all respects withbe deemed to be converted, the provisions of Section 1091 as of the OGCA (“Section 1091”) (the “Southwest Dissenting Shareholders”)Effective Time, shall not be converted into or be exchangeable for the right to receive any his, her or its pro rata share of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of such Southwest Dissenting Shares Class A Consideration in accordance with the provisions this Article 2, without interest, or, if such shares are shares of Section 1091. At Cumulative Preferred Stock, be deemed to be converted, as of the Effective Time, all Southwest Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except into the right to receive his, her or its pro rata share of the fair value of such Southwest Dissenting Shares Cumulative Consideration in accordance with the provisions of Section 1091. Notwithstanding the foregoingthis Article 2, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 1091without interest, or a court if such shares are shares of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091Common Stock, then the right of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 shall cease and such Southwest Dissenting Shares shall be deemed to have been converted at be converted, as of the Effective Time intoTime, and shall have become, into the right to receive his, her or its pro rata share of the Merger Common Consideration as provided in Section 2.1(c) accordance with Article 2, without interest. Any party hereto which receives a demand from a Dissenting Stockholder for payment of this Agreementhis, any cash in lieu her or its shares of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d).
(b) Southwest Company stock shall give Xxxxxxx prompt written notice (but in any event within 48 hours) to Xxxxxxx of any demands for appraisal of any shares of Southwest Common Stock and any withdrawals of such demands, demand to each other party hereto. Such notice shall include the identity of the Dissenting Shareholder and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect to a summary of such demands. Southwest shall not, except with the prior written consent of Xxxxxxx, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for paymentDissenting Shareholder's demand.
Appears in 1 contract
Samples: Merger Agreement (Playcore Inc)
Dissenting Shareholders. (a) Notwithstanding anything in any provision of this Agreement to the contrary, shares each share of Southwest Common Stock IX Energy common stock that are is issued and outstanding immediately prior to the Effective Time Closing and which are that is held by any Holder a shareholder of IX Energy who is entitled to demand has not voted in favor of this Agreement or consented thereto in writing and properly demands appraisal who shall have otherwise perfected such holder’s dissenters’ rights in accordance with and as contemplated by Section 262 of the DGCL (each such shares of Southwest Common Stock pursuant toshareholder, a “Dissenting Stockholder”, and who complies in all respects witheach share of IX Energy common stock held by such shareholder, the provisions of Section 1091 of the OGCA (a “Section 1091Dissenting Share”) (the “Southwest Dissenting Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in ARTICLE 2 (the “Southwest Dissenting Shares”)canceled, extinguished and converted, but instead such Holder shall be entitled to payment receive from the Surviving Corporation the value of the fair value shares of IX Energy common stock held by such Southwest Dissenting Shares in accordance with Stockholder as determined pursuant to Section 262 of the provisions of Section 1091. At the Effective TimeDGCL; provided, all Southwest however, that if such Dissenting Shares shall no longer be outstandingStockholder fails to perfect, shall automatically be canceled and retired and shall cease to exist, and each Holder of Southwest Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of or effectively withdraws or loses such Southwest Dissenting Shares in accordance with the provisions of Section 1091. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the holder’s right to appraisal of and payment for such holder’s shares under Section 1091262 of the DGCL, or a court each share of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section 1091, then the right IX Energy common stock of such Holder to be paid the fair value of such Holder’s Southwest Dissenting Shares under Section 1091 Stockholder shall cease and such Southwest Dissenting Shares shall thereupon be deemed to have been converted at into and to have become exchangeable for, as of the Effective Time into, and shall have becomeClosing, the right to receive shares of YOO common stock, and such share of IX Energy common stock shall no longer be a Dissenting Share. In such event, IX Energy shall deliver the Merger Consideration as provided in Section 2.1(cnumber of shares of YOO common Stock to which such shareholder is entitled (without interest) upon surrender by such shareholder of this Agreement, any cash in lieu the certificate or certificates representing the shares of fractional shares (if any) pursuant to Section 2.6 and any dividends or distributions (if any) pursuant to Section 3.1(d)IX Energy common stock held by such shareholder.
(b) Southwest IX Energy shall give Xxxxxxx prompt provide notice in accordance with the DGCL to each shareholder that is entitled to appraisal rights; provided that if the IX Energy shareholders have approved the Merger by written consent pursuant to Section 228 of the DGCL, IX Energy shall provide notice (but promptly, and in any event within 48 hoursfive (5) business days, after such stockholder approval is obtained. IX Energy shall give prompt notice to Xxxxxxx YOO of any demands received by IX Energy for appraisal of any shares of Southwest Common Stock IX Energy common stock. The Surviving Corporation shall promptly pay to any Dissenting Stockholder any and any withdrawals of such demands, all amounts due and Xxxxxxx shall have the right to participate in and direct all negotiations and proceedings with respect owing to such demands. Southwest shall notholder as a result of any settlement of, except with or determination by the prior written consent Court of Xxxxxxx, voluntarily make any payment Chancery of the State of Delaware with respect to, or settle, or offer or agree to settle, any such demand for paymentdemands.
Appears in 1 contract
Samples: Merger Agreement (Yoo Inc)
