Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Common Stock or Mortgage Sub Stock shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered for exchange as provided in this ARTICLE III. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Common Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Stock, less the amount of any withholding taxes which may be required thereon. (b) No fractional shares of AIMCO Common Stock or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Stock or Mortgage Sub Stock. (c) At and after the Effective Time, there shall be no further registration of transfers of shares of NHP Common Stock or Rights. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this ARTICLE III. Certificates surrendered for exchange by any Person constituting an "affiliate" of NHP for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO has received a written Rule 145 Affiliate Agreement from such Person as provided in SECTION 6.14. (d) If any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreement. (e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Common Stock or Rights one year after the Effective Time shall be delivered (i) in the case of the Merger Consideration, to AIMCO, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance with this ARTICLE III shall thereafter look only (i) to AIMCO for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the AIMCO Common Stock deliverable in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCO, NHP or the Surviving Corporation shall be liable to any former holder of shares of NHP Common Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any governmental entity) shall, to the extent permitted by applicable law, become the property of AIMCO free and clear of any claims or interest of any person previously entitled thereto. (f) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by AIMCO, the posting by such Person of a bond in such reasonable amount as AIMCO may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration and Rights Consideration, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Common Stock or Mortgage Sub Stock deliverable in respect thereof pursuant to this Agreement. (g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, in accordance with the terms of the Rights.
Appears in 2 contracts
Samples: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Internet Group Common Stock or Mortgage Sub Stock shall be paid with respect to the holder any shares of Company Capital Stock represented by a Company Stock Certificate, nor shall any unsurrendered Certificates cash payment in lieu of fractional shares be paid with respect to any such shares, until such Certificates are Company Stock Certificate is surrendered for exchange as provided in this ARTICLE IIIherein. Subject to the effect of applicable laws, following the surrender of any such Company Stock Certificate, there shall be paidpaid to the holder of the Internet Group Common Stock certificates issued in exchange therefor, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Internet Group Common Stock and not paid, less the amount of any withholding taxes which may be required thereon, thereon and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Internet Group Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Stock, less the amount of any withholding taxes which may be required thereon.
(b) No fractional All shares of AIMCO Internet Group Common Stock or Mortgage Sub issued upon surrender of Company Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or Certificates in accordance with the terms of the Rights) this Article I shall be aggregated and, if a fractional share results from such aggregation, such holder shall deemed to be entitled in full satisfaction of all rights pertaining to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Company Capital Stock or Mortgage Sub Stock.
(c) At represented thereby, and from and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Company of the shares of NHP Common Stock or RightsCompany Capital Stock. If, after the Effective Time, Certificates certificates representing any such shares are presented to the Surviving Corporation, they shall be cancelled canceled and exchanged for certificates for the consideration provided forconsideration, and if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth, forth in this ARTICLE IIIArticle I.
(c) No fractional shares of Internet Group Common Stock shall be issued pursuant to the Merger. Certificates surrendered In lieu of the issuance of any fractional share of Internet Group Common Stock pursuant to the Merger, cash adjustments will be paid to holders in respect of any fractional share of Internet Group Common Stock that would otherwise be issuable, and the amount of such cash adjustment shall be equal to the product of such fractional amount and the average closing price of Internet Group Common Stock for exchange by any Person constituting an "affiliate" of NHP for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO has received a written Rule 145 Affiliate Agreement from such Person as provided in SECTION 6.14first five trading days commencing on and immediately following the Closing Date.
(d) If Upon demand by Parent, the Exchange Agent shall deliver to Parent any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Internet Group Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreement.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Common Stock or Rights one year after the Effective Time shall be delivered (i) in the case of the Merger Consideration, to AIMCOSection 1.10 hereof, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance with this ARTICLE III shall thereafter look only (i) to AIMCO for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on thereof, that remains undistributed to holders of Company Capital Stock one year after the AIMCO Effective Time. Holders of Certificates who have not complied with this Article I prior to such demand shall thereafter look only to Parent for payment of any claim to such Internet Group Common Stock deliverable and dividends or distributions, if any, in respect thereof, determined pursuant to this Agreement, in each case, without interest, and .
(iie) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCOParent, NHP Acquisition Company, the Company, the Exchange Agent or the Surviving Corporation any other person shall be liable to any former holder of shares of NHP Common Company Capital Stock for any amount paid properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders any holder of shares of NHP Common Company Capital Stock three years after the Effective Time (or such earlier date immediately prior to such time as when such amounts would otherwise escheat to or become the property of any governmental entity) Governmental Body (as defined in Section 2.5), shall, to the extent permitted by applicable lawlaws, become the property of AIMCO Parent, free and clear of any all claims or interest of any person previously entitled thereto.
(f) Each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the Internet Group Common Stock, and cash in lieu of fractional shares thereof (and any dividends or distributions thereon) otherwise payable hereunder to any person such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign income tax law. To the extent that the Surviving Corporation or Parent so withholds those amounts, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Capital Stock in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be.
(g) In the event that any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by AIMCOParent, the posting by such Person person of a bond in such reasonable amount as AIMCO Parent may direct as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate the applicable Merger Consideration and Rights Considerationmerger consideration, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Internet Group Common Stock or Mortgage Sub Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, in accordance with the terms of the Rights.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Walt Disney Co/)
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other --------------------------------- provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Common Media Stock or Mortgage Sub Series D Preferred Stock shall be paid with respect to any whole shares of Media Stock or Series D Preferred Stock represented by a Company Certificate until such Company Certificate is surrendered for exchange as provided herein. Subject to the effect of Applicable Laws, following surrender of any such Company Certificate, there shall be paid to the holder of any unsurrendered the Acquiror Certificates until such Certificates are surrendered for issued in exchange as provided in this ARTICLE III. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paidtherefor, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Common Media Stock and Series D Preferred Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Media Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Series D Preferred Stock, less the amount of any withholding taxes which may be required thereon.
(b) No fractional shares of AIMCO Common Stock i. At or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Stock or Mortgage Sub Stock.
(c) At and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Company of the shares of NHP Company Common Stock or Rightswhich were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates certificates representing any such shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for certificates for the consideration provided forconsideration, and if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth, forth in this ARTICLE Article III. Company Certificates surrendered for exchange by any Person constituting an "affiliate" of NHP the Company for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO Acquiror has received a written Rule 145 Affiliate Agreement agreement from such Person as provided in SECTION 6.14Section 7.13.
ii. No certificates or scrip evidencing fractional shares of Media Stock or Series D Preferred Stock shall be issued upon the surrender for exchange of Company Certificates, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Acquiror. In lieu of any such fractional shares, the Exchange Agent shall, on behalf of all holders of fractional shares of Media Stock and Series D Preferred Stock, as soon as practicable after the Effective Time, aggregate all such fractional interests (collectively, the "Fractional Shares") and, at Acquiror's option, such Fractional Shares shall be purchased by Acquiror or otherwise sold by the Exchange Agent as agent for the holders of such Fractional Shares, in either case at the then prevailing price on the NYSE, all in the manner provided hereinafter. Until the net proceeds of such sale or sales have been distributed to the holders of Fractional Shares, the Exchange Agent shall retain such proceeds in trust for the benefit of such holders. Acquiror shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including expenses and compensation of the Exchange Agent, incurred in connection with such sale of the Fractional Shares.
(d1) If any portion To the extent not purchased by Acquiror, the sale of the Merger Consideration Fractional Shares by the Exchange Agent shall be executed on the NYSE or Rights Consideration through one or more member firms of the NYSE and will be executed in round lots to the extent practicable. In either case, the Exchange Agent will determine the portion, if any, of the net proceeds of such sale to which each holder of Fractional Shares is entitled, by multiplying the amount of the aggregate net proceeds of the sale of the Fractional Shares, by a fraction, the numerator of which is the amount of Fractional Shares to which such holder is entitled and the denominator of which is the aggregate amount of Fractional Shares to which all holders of Fractional Shares are entitled.
(2) As soon as practicable after the determination of the amount of cash, if any, to be paid to a Person other than holders of Fractional Shares in lieu of such Fractional Shares, the registered Exchange Agent shall mail such amounts, without interest, to such holders; provided, however, that no such amount will -------- ------- be paid to any holder of such Fractional Shares prior to the surrender by such holder of the Company Certificates formerly representing such holder's shares of NHP Company Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights AgreementStock.
(e) iii. Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available Exchange Fund that remains undistributed to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Company Common Stock or Rights one year for six months after the Effective Time shall be delivered (i) in the case of the Merger Considerationto Acquiror, to AIMCOupon demand, and (ii) in the case any holders of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder Company Common Stock who has have not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance complied with this ARTICLE Article III shall thereafter look only (i) to AIMCO Acquiror for payment of the applicable Class A Merger Consideration or Class B Merger Consideration, as applicable, net cash in lieu proceeds from the sale of fractional shares Fractional Shares and unpaid dividends and distributions on the AIMCO Common Media Stock deliverable in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interestSeries
iv. None of AIMCOAcquiror, NHP the Company or the Surviving Corporation Exchange Agent shall be liable to any former holder of shares of NHP Company Common Stock for any amount paid cash, shares of Media Stock or Series D Preferred Stock, net cash proceeds from the sale of Fractional Shares or unpaid dividends or distributions with respect to Media Stock or Series D Preferred Stock from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawslaw. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three If any Company Certificates shall not have been surrendered prior to seven years after the Effective Time (or such earlier date immediately prior to such time as earlier date on which any cash, shares of Media Stock or Series D Preferred Stock, net cash proceeds from the sale of Fractional Shares or unpaid dividends or distributions with respect to Media Stock or Series D Preferred Stock in respect of such amounts Company Certificates would otherwise escheat to or become the property of any governmental entity) Governmental Authority), any such cash, shares or unpaid dividends or distributions in respect of such Company Certificates shall, to the extent permitted by applicable lawApplicable Laws, become the property of AIMCO free and clear the Surviving Corporation; provided, however, that any holder of Company -------- ------- Common Stock shall thereafter have the right to demand from Acquiror any claims such cash, shares or interest of any person previously entitled theretounpaid dividends or distributions.
(f) v. In the event that any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by AIMCOAcquiror, the posting by such Person of a bond in such reasonable amount as AIMCO Acquiror may direct as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent (or Acquiror, as the case may be) will issue in exchange for such lost, stolen or destroyed Company Certificate the applicable Class A Merger Consideration and Rights or Class B Merger Consideration, as applicable, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Common Media Stock or Mortgage Sub and Series D Preferred Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during vi. Acquiror shall be entitled to, or shall be entitled to cause the period between Exchange Agent to, deduct and withhold from the date of consideration otherwise payable pursuant to this Agreement and the Effective Time, to any change in the outstanding holder of shares of capital stock Company Common Stock such amounts as are required to be deducted and withheld with respect to the making of AIMCO or such payment under the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of sharesCode, or any stock dividend thereon with a record date during such periodprovision of state, local or foreign tax law. To the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration extent that amounts are so withheld by Acquiror or the number of shares of Mortgage Sub Stock constituting all or part of the Rights ConsiderationExchange Agent, as the case may be, such withheld amounts shall be appropriately adjusted, and, in treated for all purposes of this Agreement as having been paid to the case holder of the Rights Consideration, shares of Company Common Stock in accordance with the terms respect of the Rightswhich such deduction and withholding was made by Acquiror.
Appears in 1 contract
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Holding Company Common Stock or Mortgage Sub Stock shall be paid with respect to the holder any shares of any unsurrendered Certificates Company Capital Stock represented by a Company Stock Certificate, until such Certificates are Company Stock Certificate is surrendered for exchange as provided in this ARTICLE IIIherein. Subject to the effect of applicable laws, following the surrender of any such Company Stock Certificate, there shall be paidpaid to the holder of the Holding Company Stock Certificates issued in exchange therefor, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Holding Company Common Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Stock, less the amount of any withholding taxes which may be required thereon.5
(b) No fractional shares of AIMCO Common Stock or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Stock or Mortgage Sub Stock.
(c) At From and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers Parent or the Company of the shares of NHP Parent Common Stock or RightsCompany Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates certificates representing any such shares are presented to the Surviving Corporationsurviving corporations of the Parent Merger or the Company Merger, they shall be cancelled canceled and exchanged for certificates for the consideration provided forconsideration, if any, deliverable in respect thereof pursuant to this Agreement and the Merger Agreements in accordance with the procedures set forth, forth in this ARTICLE III. Article I. Subject to applicable law, Company Stock Certificates surrendered for exchange by any Person person constituting an "affiliate" of NHP the Company for purposes of Rule 145(c) under the Securities Act of 1933, as amended (the "Securities Act"), shall not be exchanged until AIMCO Parent has received a written agreement from such person agreeing to comply with the provisions of Rule 145 Affiliate Agreement from under the Securities Act.
(c) No fractional shares of Holding Company Common Stock shall be issued pursuant to the Company Merger. In lieu of the issuance of any fractional share of Holding Company Common Stock pursuant to the Company Merger, cash adjustments will be paid to holders in respect of any fractional share of Holding Company Common Stock that would otherwise be issuable, and the amount of such Person as provided in SECTION 6.14cash adjustment shall be equal to the product of such fractional amount and the average closing price of Parent Common Stock for the ten (10) trading days ending on the trading day prior to the Closing Date.
(d) If any portion None of the Merger Consideration or Rights Consideration is to be paid to a Person other than Parent, the registered holder of Company, the shares of NHP Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange thereforHolding Company, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent or any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreement.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Common Stock or Rights one year after the Effective Time shall be delivered (i) in the case of the Merger Consideration, to AIMCO, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance with this ARTICLE III shall thereafter look only (i) to AIMCO for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the AIMCO Common Stock deliverable in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCO, NHP or the Surviving Corporation person shall be liable to any former holder of shares of NHP Parent Common Stock or Company Capital Stock for any amount paid properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any governmental entity) shall, to the extent permitted by applicable law, become the property of AIMCO free and clear of any claims or interest of any person previously entitled thereto.
(fe) In the event that any Company Stock Certificate (other than certificates representing Dissenting Shares) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person person claiming such Company Stock Certificate to be lost, stolen or destroyed and, if required by AIMCOHolding Company, the posting by such Person person of a bond in such reasonable amount as AIMCO Holding Company may direct as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate the applicable Merger Consideration and Rights Considerationmerger consideration, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Holding Company Common Stock or Mortgage Sub Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Common Stock constituting all or part of the Company Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, in accordance with the terms of the RightsAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Walt Disney Co/)
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Common Media Stock or Mortgage Sub Series D Preferred Stock shall be paid with respect to any whole shares of Media Stock or Series D Preferred Stock represented by a Company Certificate until such Company Certificate is surrendered for exchange as provided herein. Subject to the effect of Applicable Laws, following surrender of any such Company Certificate, there shall be paid to the holder of any unsurrendered the Acquiror Certificates until such Certificates are surrendered for issued in exchange as provided in this ARTICLE III. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paidtherefor, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Common Media Stock and Series D Preferred Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Media Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Series D Preferred Stock, less the amount of any withholding taxes which may be required thereon.
(b) No fractional shares of AIMCO Common Stock At or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Stock or Mortgage Sub Stock.
(c) At and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Company of the shares of NHP Company Common Stock or Rightswhich were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates certificates representing any such shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for certificates for the consideration provided forconsideration, and if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth, forth in this ARTICLE Article III. Company Certificates surrendered for exchange by any Person constituting an "affiliate" of NHP the Company for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO Acquiror has received a written Rule 145 Affiliate Agreement agreement from such Person as provided in SECTION 6.14Section 7.13.
(i) No certificates or scrip evidencing fractional shares of Media Stock or Series D Preferred Stock shall be issued upon the surrender for exchange of Company Certificates, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Acquiror. In lieu of any such fractional shares, the Exchange Agent shall, on behalf of all holders of fractional shares of Media Stock and Series D Preferred Stock, as soon as practicable after the Effective Time, aggregate all such fractional interests (collectively, the "Fractional Shares") and, at Acquiror's option, such Fractional Shares shall be purchased by Acquiror or otherwise sold by the Exchange Agent as agent for the holders of such Fractional Shares, in either case at the then prevailing price on the NYSE, all in the manner provided hereinafter. Until the net proceeds of such sale or sales have been distributed to the holders of Fractional Shares, the Exchange Agent shall retain such proceeds in trust for the benefit of such holders. Acquiror shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including expenses and compensation of the Exchange Agent, incurred in connection with such sale of the Fractional Shares.
(ii) To the extent not purchased by Acquiror, the sale of the Fractional Shares by the Exchange Agent shall be executed on the NYSE or through one or more member firms of the NYSE and will be executed in round lots to the extent practicable. In either case, the Exchange Agent will determine the portion, if any, of the net proceeds of such sale to which each holder of Fractional Shares is entitled, by multiplying the amount of the aggregate net proceeds of the sale of the Fractional Shares, by a fraction, the numerator of which is the amount of Fractional Shares to which such holder is entitled and the denominator of which is the aggregate amount of Fractional Shares to which all holders of Fractional Shares are entitled.
(iii) As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of Fractional Shares in lieu of such Fractional Shares, the Exchange Agent shall mail such amounts, without interest, to such holders; PROVIDED, HOWEVER, that no such amount will be paid to any holder of such Fractional Shares prior to the surrender by such holder of the Company Certificates formerly representing such holder's shares of Company Common Stock.
(d) If any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreement.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available Exchange Fund that remains undistributed to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Company Common Stock or Rights one year for six months after the Effective Time shall be delivered (i) in the case of the Merger Considerationto Acquiror, to AIMCOupon demand, and (ii) in the case any holders of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder Company Common Stock who has have not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance complied with this ARTICLE Article III shall thereafter look only (i) to AIMCO Acquiror for payment of the applicable Class A Merger Consideration or Class B Merger Consideration, as applicable, net cash in lieu proceeds from the sale of fractional shares Fractional Shares and unpaid dividends and distributions on the AIMCO Common Media Stock deliverable and Series D Preferred Stock to which they are entitled. All interest accrued in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) of the Exchange Fund shall inure to the Mortgage Subsidiary for payment benefit of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant be paid to this Agreement and the Rights Agreement, in each case, without interest. Acquiror.
(e) None of AIMCOAcquiror, NHP the Company or the Surviving Corporation Exchange Agent shall be liable to any former holder of shares of NHP Company Common Stock for any amount paid cash, shares of Media Stock or Series D Preferred Stock, net cash proceeds from the sale of Fractional Shares or unpaid dividends or distributions with respect to Media Stock or Series D Preferred Stock from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawslaw. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three If any Company Certificates shall not have been surrendered prior to seven years after the Effective Time (or such earlier date immediately prior to such time as earlier date on which any cash, shares of Media Stock or Series D Preferred Stock, net cash proceeds from the sale of Fractional Shares or unpaid dividends or distributions with respect to Media Stock or Series D Preferred Stock in respect of such amounts Company Certificates would otherwise escheat to or become the property of any governmental entity) Governmental Authority), any such cash, shares or unpaid dividends or distributions in respect of such Company Certificates shall, to the extent permitted by applicable lawApplicable Laws, become the property of AIMCO free and clear the Surviving Corporation; PROVIDED, HOWEVER, that any holder of Company Common Stock shall thereafter have the right to demand from Acquiror any claims such cash, shares or interest of any person previously entitled theretounpaid dividends or distributions.
(f) In the event that any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by AIMCOAcquiror, the posting by such Person of a bond in such reasonable amount as AIMCO Acquiror may direct as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent (or Acquiror, as the case may be) will issue in exchange for such lost, stolen or destroyed Company Certificate the applicable Class A Merger Consideration and Rights or Class B Merger Consideration, as applicable, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Common Media Stock or Mortgage Sub and Series D Preferred Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during Acquiror shall be entitled to, or shall be entitled to cause the period between Exchange Agent to, deduct and withhold from the date of consideration otherwise payable pursuant to this Agreement and the Effective Time, to any change in the outstanding holder of shares of capital stock Company Common Stock such amounts as are required to be deducted and withheld with respect to the making of AIMCO or such payment under the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of sharesCode, or any stock dividend thereon with a record date during such periodprovision of state, local or foreign tax law. To the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration extent that amounts are so withheld by Acquiror or the number of shares of Mortgage Sub Stock constituting all or part of the Rights ConsiderationExchange Agent, as the case may be, such withheld amounts shall be appropriately adjusted, and, in treated for all purposes of this Agreement as having been paid to the case holder of the Rights Consideration, shares of Company Common Stock in accordance with the terms respect of the Rightswhich such deduction and withholding was made by Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Us West Inc)
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Aether Common Stock or Mortgage Sub Stock shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered for exchange as provided in this ARTICLE III. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of AIMCO Aether Common Stock into which the shares of NHP Common Riverbed Capital Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Aether Common Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Aether Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Stock, less the amount of any withholding taxes which may be required thereon.
(b) No fractional shares of AIMCO Aether Common Stock or Mortgage Sub Stock Aether Options shall be issued in the Merger. All fractional shares of AIMCO Aether Common Stock or Mortgage Sub Stock Aether Options that a holder of shares of NHP Common Riverbed Capital Stock or Rights Riverbed Options would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Aether Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled (net any exercise price, if applicable) by (ii) in the case of AIMCO Common Stock, $26.75 and, in Average Aether Stock Price for the case of Mortgage Sub Stock, $9.15Measurement Period. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Aether Common Stock or Mortgage Sub Stockof an Aether Option.
(c) At and after the Effective Time, there shall be no further registration of transfers of shares of NHP Common Stock or RightsRiverbed Capital Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the consideration provided for, and Merger Consideration in accordance with the procedures set forth, forth in this ARTICLE III. Certificates surrendered for exchange by any Person constituting an "affiliate" of NHP for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO has received a written Rule 145 Affiliate Agreement from such Person as provided in SECTION 6.14.
(d) If any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Common Riverbed Capital Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreementpayable.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Common Riverbed Capital Stock or Rights one year after the Effective Time shall be delivered (i) in the case of the Merger Consideration, to AIMCO, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage SubsidiaryAether. Any such holder who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance with this ARTICLE III shall thereafter look only (i) to AIMCO Aether for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the AIMCO Aether Common Stock deliverable in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCOAether, NHP Riverbed or the Surviving Corporation shall be liable to any former holder of shares of NHP Common Riverbed Capital Stock for any amount paid to a public official Governmental Authority pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three Certificates five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become the property of any governmental entityGovernmental Authority) shall, to the extent permitted by applicable law, become the property of AIMCO Aether free and clear of any claims or interest of any person previously entitled thereto.
(f) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by AIMCOAether, the posting by such Person of a bond in such reasonable a customary amount as AIMCO may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration and Rights Consideration, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Common Stock or Mortgage Sub Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, in accordance with the terms of the Rights.unpaid
Appears in 1 contract
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Common Univision Stock or Mortgage Sub Stock shall will be paid with respect to the holder any shares of any unsurrendered Certificates Univision Stock issuable upon surrender of an HBC Certificate, until such Certificates are HBC Certificate is surrendered for exchange as provided in this ARTICLE IIIAgreement. Subject to the effect of applicable laws, following the surrender of any such HBC Certificate, there shall will be paidpaid to the holder of the Univision Certificates issued in exchange therefor, without interest, to the Person in whose name the certificates representing the shares of AIMCO Common Stock into which the shares of NHP Common Stock formerly represented by such Certificate were converted are registered, ,
(i1) at the time of such surrender, the amount of all dividends and or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Common Univision Stock and not paid, less the amount of any withholding taxes which may be required thereon, and and
(ii2) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to before surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Univision Stock, less the amount of any withholding taxes which may be required thereon.
(b) No fractional shares of AIMCO Common Stock At or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled by (ii) in the case of AIMCO Common Stock, $26.75 and, in the case of Mortgage Sub Stock, $9.15. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Common Stock or Mortgage Sub Stock.
(c) At and after the Effective Time, there shall will be no further registration transfers on the stock transfer books of transfers Surviving Corporation of the shares of NHP Common Stock or RightsHBC Stock, which were outstanding immediately before the Effective Time. If, after the Effective Time, HBC Certificates are presented to the Surviving Corporation, they shall will be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, forth in this ARTICLE III. I. HBC Certificates surrendered for exchange by any Person person constituting an "affiliate" of NHP HBC for purposes of Rule 145(c) under the Securities Act shall of 1933, as amended (the "Securities Act"), will not be exchanged until AIMCO Univision has received a written Rule 145 Affiliate Agreement agreement from such Person person as provided in SECTION 6.14Section 4.11.
(c) No fractional shares (and no certificates or scrip representing fractional shares) of Univision Stock will be issued pursuant to the Merger. In lieu of the issuance of any fractional share of Univision Stock pursuant to the Merger, cash adjustments will be paid to holders in respect of any fractional share of Univision Stock that would otherwise be issuable, and the amount of such cash adjustment will be equal to the product of such fractional amount and the average of the last reported sales price per share of Univision Class A Common Stock as reported on the New York Stock Exchange for the five trading days immediately before the Effective Time.
(d) If any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Common Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreement.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu Exchange Fund (including the proceeds of fractional any investments thereof and any shares made available to the Exchange Agent pursuant to this ARTICLE III of Univision Stock) that remains unclaimed by the former holders stockholders of shares of NHP Common Stock or Rights one year HBC six months after the Effective Time shall will be delivered (i) in the case of the Merger Consideration, to AIMCO, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage SubsidiaryUnivision. Any such holder former stockholder of HBC who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance complied with this ARTICLE III shall I will thereafter look only (i) to AIMCO Univision for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the AIMCO Common Univision Stock deliverable in respect thereof, determined pursuant to this Agreement, in each casewithout any interest thereon. Any profit resulting from, without interestor interest or income produced by, and the Exchange Fund shall be payable to Univision upon its request.
(iie) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCOUnivision, NHP or HBC, the Surviving Corporation shall Corporation, the Exchange Agent or any other person will be liable to any former holder of shares of NHP Common HBC Stock for any amount paid properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any governmental entity) shall, to the extent permitted by applicable law, become the property of AIMCO free and clear of any claims or interest of any person previously entitled thereto.
(f) In the event that If any HBC Certificate shall have been is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person person claiming such HBC Certificate to be lost, stolen or destroyed and, if required by AIMCOUnivision, the posting by such Person person of a bond in such reasonable amount as AIMCO Univision may direct as indemnity against any claim that may be made against it with respect to such HBC Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed HBC Certificate the applicable Merger Consideration and Rights Consideration, cash in lieu of fractional shares, if any, and unpaid dividends and distributions on shares of AIMCO Common Stock or Mortgage Sub Stock Univision Stock, if any, as provided in this Section 1.10, deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Common Stock constituting all or part of the Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, in accordance with the terms of the Rights.
Appears in 1 contract
Dividends, Fractional Shares, Etc. (a) Notwithstanding any other provisions of this Agreement, no dividends or other distributions declared after the Effective Time on AIMCO Aether Common Stock or Mortgage Sub Stock shall be paid to the holder of any unsurrendered Certificates of Company Preferred Stock until such Certificates are surrendered for exchange as provided in this ARTICLE III. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of AIMCO Aether Common Stock into which the shares of NHP Common Company Preferred Stock formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of AIMCO Aether Common Stock and not paid, less the amount of any withholding taxes Taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of AIMCO Aether Common Stock, less the amount of any withholding taxes which may be required thereon. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid, without interest, to the Person in whose name the certificates representing the shares of Mortgage Sub Stock into which the Rights formerly represented by such Certificate were converted are registered, (i) at the time of such surrender, the amount of all dividends and other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares of Mortgage Sub Stock and not paid, less the amount of any withholding taxes which may be required thereon, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Mortgage Sub Stock, less the amount of any withholding taxes Taxes which may be required thereon.
(b) No fractional shares of AIMCO Common Stock or Mortgage Sub Stock shall be issued in the Merger. All fractional shares of AIMCO Aether Common Stock or Mortgage Sub Stock that a holder of shares of NHP Common Company Capital Stock or Rights would otherwise be entitled to receive as a result of the Merger (or in accordance with the terms of the Rights) shall be aggregated and, if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the fraction of a share of AIMCO Aether Common Stock or Mortgage Sub Stock to which such holder would otherwise have been entitled (net any exercise price, if applicable) by (ii) in the case of AIMCO Common Stock, $26.75 and, in Average Aether Stock Price for the case of Mortgage Sub Stock, $9.15Measurement Period. No interest will be paid or will accrue on any cash paid or payable in lieu of any fractional shares of AIMCO Aether Common Stock or Mortgage Sub Stock.
(c) At and after the Effective Time, there shall be no further registration of transfers of shares of NHP Common Stock or RightsCompany Capital Stock. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the consideration provided for, and Merger Consideration in accordance with the procedures set forth, forth in this ARTICLE III. Certificates surrendered for exchange by any Person constituting an "affiliate" of NHP for purposes of Rule 145(c) under the Securities Act shall not be exchanged until AIMCO has received a written Rule 145 Affiliate Agreement from such Person as provided in SECTION 6.14.
(d) If any portion of the Merger Consideration or Rights Consideration is to be paid to a Person other than the registered holder of the shares of NHP Common Company Capital Stock and Rights represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Exchange Agent Aether any transfer or other taxes Taxes required as a result of such payment to a Person other than the registered holder of such Certificates or establish to the satisfaction of the Exchange Agent Aether that such tax Tax has been paid or is not payable and, with respect to the Rights, such other conditions as may be set forth in the Rights Agreementpayable.
(e) Any portion of the Merger Consideration, Rights Consideration or cash payable in lieu of fractional shares made available to the Exchange Agent pursuant to this ARTICLE III that remains unclaimed by the former holders of shares of NHP Common Stock or Rights one year after the Effective Time shall be delivered (i) in the case of the Merger Consideration, to AIMCO, and (ii) in the case of the Rights Consideration and cash payable in lieu of fractional shares of Mortgage Sub Stock, to the Mortgage Subsidiary. Any such holder who has not theretofore exchanged his Certificates for the Merger Consideration and Rights Consideration in accordance with this ARTICLE III shall thereafter look only (i) to AIMCO for payment of the applicable Merger Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the AIMCO Common Stock deliverable in respect thereof, determined pursuant to this Agreement, in each case, without interest, and (ii) to the Mortgage Subsidiary for payment of the applicable Rights Consideration, cash in lieu of fractional shares and unpaid dividends and distributions on the Mortgage Sub Stock deliverable in respect thereof, determined pursuant to this Agreement and the Rights Agreement, in each case, without interest. None of AIMCOAether, NHP Cerulean or the Surviving Corporation shall be liable to any former holder of shares of NHP Common Company Capital Stock for any amount paid to a public official Governmental Authority pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of NHP Common Stock three Certificates five years after the Effective Time (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become the property of any governmental entityGovernmental Authority) shall, to the extent permitted by applicable law, become the property of AIMCO Aether free and clear of any claims or interest of any person previously entitled thereto.
(f) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by AIMCOAether, the posting by such Person of a bond in such reasonable a customary amount as AIMCO may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent Aether will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration and Rights Consideration, cash in lieu of fractional shares, and unpaid dividends and distributions on shares of AIMCO Aether Common Stock or Mortgage Sub Stock deliverable in respect thereof pursuant to this Agreement.
(g) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of AIMCO or the Mortgage Subsidiary Aether shall occur, including by reason of any reclassification, reorganization, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the number of shares of AIMCO Aether Common Stock constituting all or part of the Merger Consideration or the number of shares of Mortgage Sub Stock constituting all or part of the Rights Consideration, as the case may be, shall be appropriately adjusted, and, in the case of the Rights Consideration, adjusted in accordance with the terms of the Rightssuch change.
Appears in 1 contract
