Common use of Election Procedures; Proration Clause in Contracts

Election Procedures; Proration. (i) As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an exchange agent selected by Parent, with the Company's prior approval, which shall not be unreasonably withheld (the "Exchange Agent"), for the benefit of the holders of Company Common Stock, certificates representing the shares of Parent Common Stock and any cash to be issued or paid pursuant to Section 1.8 and any cash, dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 1.9(c) (such cash and certificates for shares of Parent Common Stock, together with the amount of any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund"). (ii) Subject to allocation, conversion and proration in accordance with the provisions of this Section 1.9, each record holder of Company Common Stock (other than Excluded Shares) issued and outstanding immediately prior to the Election Deadline (as defined below) shall be entitled (A) to elect to receive in respect of each such share of Company Common Stock (x) Cash Consideration (a "Cash Election") or (y) Stock Consideration (a "Stock Election") or (B) to indicate that such record holder has no preference as to the receipt of Cash Consideration or Stock Consideration for such Company Common Stock (a "Non-Election"). Shares of Company Common Stock in respect of which a Non-Election is made (including shares in respect of which such an election is deemed to have been made pursuant to this Agreement (collectively, "Non-Election Shares")) shall, as nearly as possible, be deemed (A) shares of Company Common Stock in respect of which Stock Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock (Company Common Stock in respect of which a Stock Election has been made, together with Company Common Stock in respect of which a Stock Election is deemed to be made pursuant to Section 1.9, being hereinafter referred to as "Stock Election Shares"), and (B) shares of Company Common Stock in respect of which Cash Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock (Company Common Stock in respect of which a Cash Election has been made, together with Company Common Stock in respect of which a Cash Election is deemed to be made pursuant to Section 1.9, being hereinafter referred to as "Cash Election Shares"), unless the Adjusted Percentage applies and then according to the Adjusted Percentage. (iii) Elections pursuant to Section 1.9(b) (ii) shall be made on a form and with such other provisions to be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to holders of record of Company Common Stock (other than holders of Excluded Shares), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Common Stock of the Proxy Statement/Prospectus (as hereinafter defined) in connection with the Shareholder Meeting referred to in Section 5.3. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office, by 5:00 p.m., on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced, along with the Conversion Ratio, by Parent as soon as practicable but in no event less than five trading days prior to the Closing Date) (the "Election Deadline") and (y) in the case of Shares that are not held in book entry form, accompanied by the Certificate(s) representing the Company Common Stock (a "Certificate" or "Certificates") as to which the election is being made or an affidavit of loss and indemnification in lieu thereof (or by an appropriate guarantee of delivery of such Certificate(s) by a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., provided that such Certificates are in fact delivered to the Exchange Agent within three trading days after the date of execution of such guarantee of delivery). For shares of Company Common Stock that are held in book entry form, Parent shall establish procedures for the delivery of such Company Common Stock, which procedures shall be reasonably acceptable to the Company. The Company shall use its best efforts to make a Form of Election available as promptly as practicable to all Persons who become holders of record of Company Common Stock (other than Excluded Shares) between the date of mailing described in the first sentence of this Section 1.9(b)(iii) and the Election Deadline. Neither Parent nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election submitted to the Exchange Agent. A holder of Company Common Stock that does not submit an effective Form of Election prior to the Election Deadline shall be deemed to have made a Non-Election. (iv) An election may be revoked or amended, but only by written notice received by the Exchange Agent prior to the Election Deadline. Any Certificate(s) that have been submitted to the Exchange Agent in connection with an election shall be returned without charge to the holder thereof in the event such election is revoked as aforesaid and such holder requests in writing the return of such Certificate(s). Upon any such revocation, unless a duly completed Form of Election is thereafter submitted in accordance with paragraph (b)(iii), such shares of Company Common Stock shall be

Election Procedures; Proration. (a) Each holder of record (or, in the case of nominee, trustee or representative holders, the beneficial owner through proper instructions and documentation) of shares of Company Stock that are to be converted into the right to receive the Merger Consideration pursuant to Section 2.02 shall have the right, subject to the limitations set forth in this Article 2, to submit an election in accordance with the following procedures (an “Election”): (i) As Parent shall prepare a form of election reasonably acceptable to the Company (the “Form of Election”). The Form of Election shall specify that delivery of Certificates (or affidavits of loss in lieu thereof) or the transfer of Uncertificated Shares to the Exchange Agent in connection with the making of an Election shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Effective TimeCertificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent, Parent shall deposit, or shall cause to be deposited, with an exchange agent selected by Parent, otherwise include customary provisions and instructions for making Elections and effecting the surrender of Certificates and Uncertificated Shares in connection with the Company's prior approval, which making of an Election and shall not be unreasonably withheld (the "Exchange Agent"), for the benefit of the holders of Company Common Stock, certificates representing the shares of include such other documents or information as Parent Common Stock and any cash reasonably determines to be issued or paid pursuant to Section 1.8 and any cash, dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 1.9(c) (such cash and certificates for shares of Parent Common Stock, together with the amount of any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund")include. (ii) Subject Each Person who is a record holder of shares of Company Stock as of the Election Deadline shall have the right to allocationsubmit a Form of Election. Holders of record of Company Stock who hold such Company Stock as nominees, conversion trustees or in other representative capacities may submit a separate Form of Election (with proper instructions and proration in accordance documentation) on or before the Election Deadline with respect to each beneficial owner for whom such nominee, trustee or representative holds such Company Stock. Parent shall prepare and cause the provisions Exchange Agent to mail a Form of this Section 1.9Election to the record holders (with sufficient copies for beneficial owners as may be requested) of Company Stock as of a date reasonably determined by the Company after consultation with Parent no later than the date that is thirty (30) days prior to the anticipated Election Deadline or such other date as mutually agreed upon by the Company and Parent, which Form of Election shall be used by each record holder (or, in the case of nominee, trustee or representative holders, the beneficial owner through proper instructions and documentation) of shares of Company Common Stock (other than Excluded Shares) issued and outstanding immediately prior who wishes to make an Election. Parent shall make available one or more Forms of Election as may reasonably be requested from time to time by all Persons who become record holders or beneficial owners of Company Stock after the initial mailing but before the Election Deadline Deadline, and the Company shall use commercially reasonable efforts to provide the Exchange Agent with all information reasonably necessary for it to perform its duties as specified herein. (as defined belowiii) Each Form of Election shall be entitled permit the Company’s stockholders (or in the case of nominee, trustee or representative record holders, the beneficial owner through proper instructions and documentation) to (A) to elect to receive in respect of each such share of Company Common Stock (x) the Cash Consideration for all or a portion of such stockholder’s shares (a "“Cash Election"”), (B) elect to receive the Stock Consideration for all or a portion of such stockholder’s shares (a “Stock Election”) or (yC) Stock Consideration (a "Stock Election") or (B) to indicate that such record holder has make no preference as election with respect to the receipt of the Cash Consideration or the Stock Consideration for such Company Common Stock (a "Non-Election"). Shares Consideration; provided, however, that, notwithstanding any other provision of Company Common Stock in respect of which a Non-Election is made (including shares in respect of which such an election is deemed to have been made pursuant to this Agreement (collectivelyto the contrary, "Non-Election Shares")) shall, as nearly as possible, be deemed (A) shares of Company Common Stock in respect of which Stock Elections have been made in an amount equal to fifty thirty percent (5030%) of the total number of such shares of Company Common Stock issued and outstanding at the Effective Time, excluding any treasury shares and shares described in Section 2.02(b) (Company Common the “Stock in respect of which a Stock Election has been made, together with Company Common Stock in respect of which a Stock Election is deemed to be made pursuant to Section 1.9, being hereinafter referred to as "Stock Election Shares"Conversion Number”), shall be converted into the right to receive Stock Consideration and (B) shares of Company Common Stock in respect of which Cash Elections have been made in an amount equal to fifty seventy percent (5070%) of the total number of such shares of Company Stock issued and outstanding at the Effective Time, excluding any treasury shares and shares described in Section 2.02(b) shall be converted into the right to receive the Cash Consideration (the “Cash Consideration Number”), in each case, in accordance with the allocation procedures set forth in Section 2.03(b); provided, further, that for purposes of the immediately preceding proviso, Dissenting Shares and shares of Company Stock converted into the right to receive a fraction of a share of Parent Class A Common Stock shall both be treated as if such shares were converted into the right to receive the Cash Consideration (Company Common Stock and solely for purposes of this clause, $33.06 in cash will be deemed payable in respect of each Dissenting Share). Shares of Company Stock as to which a Cash Election has been mademade and not revoked as of the Election Deadline, together with shares of Company Stock that constitute Dissenting Shares as of the Election Deadline and shares of Company Stock converted into the right to receive a fraction of a share of Parent Class A Common Stock in respect of which a Cash Election is deemed to be made pursuant to Section 1.9, being hereinafter are referred to herein as "“Cash Election Shares")”. Shares of Company Stock as to which a Stock Election has been made and not revoked as of the Election Deadline are referred to herein as “Stock Election Shares”. Shares of Company Stock as to which no election has been made (or as to which a Form of Election is not properly completed and returned in a timely fashion or as to which a Form of Election has been revoked and not replaced) as of the Election Deadline are referred to herein as “Non-Election Shares”. The aggregate number of shares of Company Stock with respect to which a Stock Election has been made and not revoked or changed as of the Election Deadline is referred to herein as the “Stock Election Number”. For the avoidance of doubt, unless if a stockholder of the Adjusted Percentage applies and then according to Company does not submit a properly completed Form of Election by the Adjusted PercentageElection Deadline, the shares of Company Stock held by such stockholder shall be designated Non-Election Shares. (iiiiv) Any Election shall have been made properly only if the Person authorized to receive Elections pursuant and to Section 1.9(b) (ii) shall be made on a form and with such other provisions to be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to holders of record of Company Common Stock (other than holders of Excluded Shares), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Common Stock of the Proxy Statement/Prospectus (act as hereinafter defined) exchange agent in connection with the Shareholder Meeting referred to in Section 5.3. Elections transactions contemplated by this Agreement, which Person shall be made selected by mailing Parent and be reasonably acceptable to the Company (the “Exchange Agent”), pursuant to an agreement reasonably acceptable to Parent and the Company entered into prior to the mailing of the Form of Election to the Company’s stockholders (the “Exchange Agent a duly completed Form of Election. To be effectiveAgreement”), shall have received, by the Election Deadline, a Form of Election must be (x) properly completed, completed and signed and submitted to the Exchange Agent at its designated officeaccompanied by, by 5:00 p.m., on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced, along with the Conversion Ratio, by Parent as soon as practicable but in no event less than five trading days prior to the Closing Date) (the "Election Deadline") and (y) in the case of Shares that are not held in book entry formphysical certificates representing shares of Company Stock, accompanied by the Certificate(s) representing the Company Common Stock (a "Certificate" or "Certificates") as Certificates to which the election is being made such Form of Election relates (or an affidavit affidavits of loss and indemnification in lieu thereof (thereof) or by an appropriate customary guarantee of delivery of such Certificate(s) by Certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., States; provided that such Certificates are in fact delivered to the Exchange Agent within three trading days after by the date of execution of such guarantee of delivery)Election Deadline. For Failure to deliver Certificates representing shares of Company Common Stock that are held covered by such a guarantee of delivery by the Election Deadline shall be deemed to invalidate any otherwise properly made Election, unless otherwise determined by Parent in book entry formits reasonable discretion, and such shares shall be deemed to be Non-Election Shares. For Uncertificated Shares, Parent shall establish Election procedures for the delivery such shares of such Company Common Stock, which procedures shall be reasonably acceptable to the Company. The If a stockholder of the Company shall use its best efforts to make a Form has demanded appraisal of Election available as promptly as practicable to all Persons who become holders of record shares of Company Common Stock, any Election submitted by such stockholder with respect to such shares of Company Stock (other than Excluded Shares) between the date of mailing described in the first sentence of this Section 1.9(b)(iii) and unless such demand shall have been withdrawn prior to the Election Deadline) shall be deemed invalid. Neither Parent nor All Forms of Election shall automatically be revoked, and all Certificates returned, if the Exchange Agent will is notified in writing by Parent and the Company that this Agreement has been terminated in accordance with its terms. After an Election is properly made with respect to any share of Common Stock, any subsequent transfer of such share shall automatically revoke such Election. (v) As used herein, “Election Deadline” means 5:00 p.m. local time (in the city in which the principal office of the Exchange Agent is located) on the date that is five (5) Business Days prior to, but not including, the Closing Date unless otherwise mutually agreed by Parent and the Company, in which event Parent and the Company shall reasonably promptly announce such rescheduled Election Deadline. An Election may be under any obligation to notify any Person of any defect in a Form of Election submitted revoked or changed only by delivering to the Exchange Agent. A holder of Company Common Stock that does not submit an effective Form of Election , prior to the Election Deadline shall be deemed to have made Deadline, a Non-Election. (iv) An election may be revoked or amended, but only by written notice received by of revocation or, in the case of a change, a properly completed revised Form of Election that identifies the Company Stock to which such revised Form of Election applies. Delivery to the Exchange Agent prior to the Election Deadline. Any Certificate(s) that have been submitted to the Exchange Agent in connection with an election shall be returned without charge to the holder thereof in the event such election is revoked as aforesaid and such holder requests in writing the return Deadline of such Certificate(s). Upon any such revocation, unless a duly completed revised Form of Election is thereafter submitted in accordance with paragraph (b)(iii), such shares of respect to any Company Common Stock shall beconstitute the revocation of all prior Forms of Election with respect to all such Company Stock. Parent and the Company shall use reasonable best efforts to publicly announce the Election Deadline at least five (5) Business Days prior to the Election Deadline or such other date mutually agreed upon by Parent and the Company.

Election Procedures; Proration. (i) As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an exchange agent selected by Parent, with the Company's prior approval, which shall not be unreasonably withheld (the "Exchange Agent"), for the benefit of the holders of Company Common StockShares, certificates Certificates representing the shares of Parent Common Stock and any cash to be issued or paid pursuant to Section 1.8 4.1 and any cash, dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 1.9(c) (such 4.2(c)(such cash and certificates for shares of Parent Common Stock, together with the amount of any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund"). (ii) Subject to allocation, conversion and proration in accordance with the provisions of this Section 1.94.2, each record holder of Company Common Stock Shares (other than Excluded Shares) issued and outstanding immediately prior to the Election Deadline (as defined below) shall be entitled (A) to elect to receive in respect of each such share of Company Common Stock Share (x) Cash Consideration (a "Cash Election") or (y) Stock Consideration (a "Stock Election") or (B) to indicate that such record holder has no preference as to the receipt of Cash Consideration or Stock Consideration for such Company Common Stock Shares (a "Non-Election"). Shares of Company Common Stock in respect of which a Non-Election is made (including shares in respect of which such an election is deemed to have been made pursuant to this Agreement (collectively, "Non-Election Shares")) shall, as nearly as possible, be deemed (A) shares of Company Common Stock Shares in respect of which Stock Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock Shares (Company Common Stock Shares in respect of which a Stock Election has been made, together with Company Common Stock Shares in respect of which a Stock Election is deemed to be made pursuant to Section 1.9, this Article IV being hereinafter referred to as "Stock Election Shares"), and (B) shares of Company Common Stock Shares in respect of which Cash Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock Shares (Company Common Stock Shares in respect of which a Cash Election has been made, together with Company Common Stock Shares in respect of which a Cash Election is deemed to be made pursuant to Section 1.9, this Article IV being hereinafter referred to as "Cash Election Shares"), unless the Adjusted Percentage applies and then according to the Adjusted Percentage. (iii) Elections pursuant to Section 1.9(b) (ii4.2(b)(ii) shall be made on a form and with such other provisions to be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to holders of record of Company Common Stock Shares (other than holders of Excluded Shares), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Common Stock Shares of the Prospectus/Proxy Statement/Prospectus Statement (as hereinafter defineddefined in Section 6.2) in connection with the Shareholder Meeting stockholders meeting referred to in Section 5.36.3. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office, by 5:00 p.m., on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced, along with the Conversion Ratio, announced by Parent as soon as practicable but in no event less than five trading days prior to the Closing Date) (the "Election Deadline") and (y) in the case of Shares that are not held in book entry form, accompanied by the Certificate(s) representing the Company Common Stock (a "Certificate" or "Certificates") Shares as to which the election is being made or an affidavit of loss and indemnification in lieu thereof (or by an appropriate guarantee of delivery of such Certificate(s) by a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., provided that such Certificates are in fact delivered to the Exchange Agent within three trading days after the date of execution of such guarantee of delivery). For shares of Company Common Stock Shares that are held in book entry form, Parent shall establish procedures for the delivery of such Company Common StockShares, which procedures Procedures shall be reasonably acceptable to the Company. The Company shall use its best efforts to as promptly as practicable make a Form of Election available as promptly as practicable to all Persons who become holders of record of Company Common Stock Shares (other than Excluded Shares) between the date of mailing described in the first sentence of this Section 1.9(b)(iii4.2(b)(iii) and the Election Deadline. Neither Parent nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election submitted to the Exchange Agent. A holder of Company Common Stock Shares that does not submit an effective Form of Election prior to the Election Deadline shall be deemed to have made a Non-Election. (iv) An election may be revoked or amended, but only by written notice received by the Exchange Agent prior to the Election Deadline. Any Certificate(s) representing Shares that have been submitted to the Exchange Agent in connection with an election shall be returned without charge to the holder thereof in the event such election is revoked as aforesaid and such holder requests in writing the return of such Certificate(s). Upon any such revocation, unless a duly completed Form of Election is thereafter submitted in accordance with paragraph (b)(iiib)(ii), such Shares shall be Non-Election Shares. In the event that this Agreement is terminated pursuant to the provisions hereof and any Shares have been transmitted to the Exchange Agent pursuant to the provisions hereof, such Shares shall promptly be returned without charge to the Person submitting the same. (v) In the event that the aggregate number of Cash Election Shares exceeds the Cash Election Number all Cash Election Shares shall be converted into the right to receive Stock Consideration or Cash Consideration in the following manner: (A) Cash Election Shares shall be deemed converted to Stock Election Shares, on a pro-rata basis for each record holder of Shares with respect to those Shares, if any, of such record holder that are Cash Election Shares, to the minimum extent necessary so that the aggregate number of Cash Election Shares following such conversion shall equal as closely as practicable the Cash Election Number; all such Cash Election Shares so converted shall be converted into the right to receive Stock Consideration; and (B) any remaining Cash Election Shares shall be converted into the right to receive Cash Consideration. (vi) In the event that the aggregate number of Stock Election Shares exceeds the Stock Election Number all Stock Election Shares shall be converted into the right to receive Stock Consideration or Cash Consideration in the following manner: (A) Stock Election Shares shall be deemed converted to Cash Election Shares, on a pro-rata basis for each record holder of Shares with respect to those Shares, if any, of such record holder that are Stock Election Shares, to the minimum extent necessary so that the aggregate number of Stock Election Shares following such conversion shall equal as closely as practicable the Stock Election Number; all such Stock Election Shares so converted shall be converted into the right to receive Cash Consideration; and (B) any remaining Stock Election Shares shall be converted into the right to receive Stock Consideration. (vii) In the event that clause (v) of this Section 4.2(b) is not applicable, all Cash Election Shares shall be converted into the right to receive Cash Consideration, and in the event that clause (vi) of this Section 4.2(b) is not applicable, all Stock Election Shares shall be converted into the right to receive Stock. (viii) The Exchange Agent, in consultation with Parent and the Company, shall make all computations to give effect to this Section 4.2. (ix) In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the Merger Consideration together with any other cash, dividends or distributions in respect thereof, may be issued and/or paid to such a transferee if the Certificate formerly representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid. If any certificate for shares of Company Parent Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall bebe a condition of such exchange that the Person (as defined below) requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for shares of Parent Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of Parent or the Exchange Agent that such tax has been paid or is not applicable.

Election Procedures; Proration. (i) As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an exchange agent selected by Parent, with the Company's prior approval, which shall not be unreasonably withheld (the "Exchange Agent"), for the benefit of the holders of Company Common Stock, certificates representing the shares of Parent Common Stock and any cash to be issued or paid pursuant to Section 1.8 and any cash, dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Section 1.9(c) (such cash and certificates for shares of Parent Common Stock, together with the amount of any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund"). (ii) Subject to allocation, conversion and proration in accordance with the provisions of this Section 1.9, each record Each holder of Company Common Stock Shares (other than Excluded SharesCompany Common Shares owned, directly or indirectly, by Acquiror and Company Common Shares with respect to which Dissent Rights in respect of the Arrangement have been properly exercised and not withdrawn) issued and outstanding immediately prior to the Election Deadline (as defined belowa “Holder”) shall be entitled have the right, subject to the limitations set forth in this Article 1, to submit an election on or prior to the Election Deadline in accordance with the procedures set forth in this Section 1.10 and the Plan of Arrangement. (Aa) to elect to receive Each Holder may specify in respect a request made in accordance with the provisions of each such share this Section 1.10 and the Plan of Arrangement (an “Election”) (i) the number of Company Common Stock (x) Cash Consideration (a "Cash Election") or (y) Stock Consideration (a "Stock Election") or (B) Shares owned by such Holder with respect to indicate that such record holder has no preference as to the receipt of Cash Consideration or Stock Consideration for such Company Common Stock (a "Non-Election"). Shares of Company Common Stock in respect of which a Non-Election is made (including shares in respect of which such an election is deemed Holder desires to have been made pursuant to this Agreement (collectivelymake a Share Election, "Non-Election Shares")) shall, as nearly as possible, be deemed (A) shares of Company Common Stock in respect of which Stock Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock (Company Common Stock in respect of which a Stock Election has been made, together with Company Common Stock in respect of which a Stock Election is deemed to be made pursuant to Section 1.9, being hereinafter referred to as "Stock Election Shares"), and (B) shares of Company Common Stock in respect of which Cash Elections have been made in an amount equal to fifty percent (50%) of the total number of such shares of Company Common Stock (Company Common Stock in respect of which a Cash Election has been made, together with Company Common Stock in respect of which a Cash Election is deemed to be made pursuant to Section 1.9, being hereinafter referred to as "Cash Election Shares"), unless the Adjusted Percentage applies and then according to the Adjusted Percentage. (iii) Elections pursuant to Section 1.9(b) (ii) shall be made on a form and with such other provisions to be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to holders of record of Company Common Stock (other than holders of Excluded Shares), together with appropriate transmittal materials, at the time of mailing to holders of record of Company Common Stock of the Proxy Statement/Prospectus (as hereinafter defined) in connection with the Shareholder Meeting referred to in Section 5.3. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office, by 5:00 p.m., on the business day that is two trading days prior to the Closing Date (which date shall be publicly announced, along with the Conversion Ratio, by Parent as soon as practicable but in no event less than five trading days prior to the Closing Date) (the "Election Deadline") and (y) in the case of Shares that are not held in book entry form, accompanied by the Certificate(s) representing the Company Common Stock (a "Certificate" or "Certificates") as to which the election is being made or an affidavit of loss and indemnification in lieu thereof (or by an appropriate guarantee of delivery of such Certificate(s) by a commercial bank or trust company in the United States or a member of a registered national security exchange or of the National Association of Securities Dealers, Inc., provided that such Certificates are in fact delivered to the Exchange Agent within three trading days after the date of execution of such guarantee of delivery). For shares of Company Common Stock that are held in book entry form, Parent shall establish procedures for the delivery number of such Company Common Stock, Shares with respect to which procedures such Holder desires to make a Cash Election and (iii) the particular shares for which the Holder desires to make either such election. Any Holder who makes an Election shall be waive all Dissent Rights in connection with making such Election. (b) Company shall prepare a letter of transmittal and election form reasonably acceptable to Acquiror (the Company. The “Letter of Transmittal and Election Form”), which shall be mailed by Company shall use its best efforts to Holders so as to permit such Holders to exercise their right to make a Form of Election available as promptly as practicable to all Persons who become holders of record of Company Common Stock (other than Excluded Shares) between the date of mailing described in the first sentence of this Section 1.9(b)(iii) and the Election Deadline. Neither Parent nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election submitted to the Exchange Agent. A holder of Company Common Stock that does not submit an effective Form of Election prior to the Election Deadline shall be deemed to have made a Non-Electionand in accordance with the Plan of Arrangement. (ivc) An election may be revoked or amendedAny Election shall have been made properly only if, but only by written notice received as provided in the Plan of Arrangement, the Depositary shall have received, by the Exchange Agent Election Deadline, a Letter of Transmittal and Election Form properly completed and signed and accompanied by (i) the certificates representing such Holder’s Company Common Shares, if any, to which such Letter of Transmittal and Election Form relate, duly endorsed in blank or otherwise in form acceptable for transfer on the books of Company, and (ii) in the case of non-certificated Company Common Shares represented by book-entry shares, any additional documents specified in procedures set forth in the Letter of Transmittal and Election Form. (d) Company shall mail or cause to be mailed or delivered, as applicable, the Letter of Transmittal and Election Form to Holders as of the record date for the Company Special Meeting not less than 20 Business Days prior to the Election Deadline. Any Certificate(s) that have been submitted Company shall make available one or more Letter of Transmittal and Election Forms as may reasonably be requested from time to time by all Persons who become Holders during the period following the record date for the Company Special Meeting and prior to the Exchange Agent in connection with an election shall be returned without charge to the holder thereof Election Deadline. (e) Company and Acquiror, in the event such election is revoked as aforesaid exercise of their reasonable discretion, shall have the joint right to make determinations, not inconsistent with the terms of this agreement and such holder requests the CBCA, governing the manner and extent to which Elections are to be taken into account in writing making the return of such Certificate(sdeterminations prescribed by Section 1.10(f). Upon . (f) Notwithstanding any such revocationother provision contained in this Agreement, unless a duly completed Form of Election is thereafter submitted in accordance with paragraph (b)(iii)but subject to Section 1.1(e) and Section 1.9, such shares the total number of Company Common Shares to be entitled to receive the Per Share Cash Amount pursuant to Section 1.1(b) shall be equal to the product (rounded up to the nearest whole share) of (i) 0.633 and (ii) the total number of Company Common Shares issued and outstanding immediately prior to the Effective Time (excluding Company Common Shares owned, directly or indirectly, by Acquiror) (such product, the “Cash Consideration Number”). All other Company Common Shares shall be entitled to receive the Per Share Stock Consideration. (g) Promptly following the Effective Time, Acquiror shall because the Depositary to effect the allocation among Holders of rights to receive the Per Share Cash Amount and the Per Share Stock Consideration as follows: (i) If the aggregate number of Cash Electing Shares (such number, the “Cash Election Number”) exceeds the Cash Consideration Number, then (A) all Stock Electing Shares shall be exchanged for the Per Share Stock Consideration and (B) the number of Cash Electing Shares of each Holder that shall be exchanged for the Per Share Cash Amount shall be equal to the product obtained by multiplying (x) the number of Cash Electing Shares held by such Holder by (y) a fraction, the numerator of which is the Cash Consideration Number and the denominator of which is the Cash Election Number, rounded to the nearest whole Company Common Share, with the remaining number of such Holder’s Cash Electing Shares being exchanged for the Per Share Stock Consideration. (ii) If the Cash Election Number is less than the Cash Consideration Number (the amount by which the Cash Consideration Number exceeds the Cash Election Number, the “Shortfall Number”), then (A) all Cash Electing Shares shall be exchanged for the Per Share Cash Amount and (B) the number of Stock Electing Shares of each Holder that shall be exchanged for the Per Share Cash Amount in respect of that number of Stock Electing Shares shall be equal to the product obtained by multiplying (x) the number of Stock Electing Shares held by such Holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Stock Electing Shares, rounded to the nearest whole Company Common Share, with the remaining number of such Holder’s Stock Electing Shares being exchanged for the Per Share Stock Consideration.